Page one to be generated by NJA · Page one to be generated by NJA. Page 2 PREFACE The Commission on Government's functions include inquiring into 24 Specified Matters if and to the

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PREFACE

The Commission on Government's functions includeinquiring into 24 Specified Matters if and to the extentthe Commission considers those matters relevant to theprevention of corrupt, illegal or improper conduct ofpublic officials, including government ministers andmembers of Parliament.The Commission may also inquire into other matters itconsiders relevant to the prevention of corrupt, illegalor improper conduct in the public sector.The Specified Matters, which are set out in the FirstSchedule of the Commission on Government Act,provide the initial focus of the Commission's inquiries.The relevant issues, however, cannot be addressed in avacuum. The Commission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This applies also toany matters which may become part of theCommission's inquiries. We have concluded that it isnecessary to address the context in which the SpecifiedMatters have arisen, the historical, contemporary andtopical circumstances and events which surround themand their relevance for the future.The Discussion Papers which the Commission hasprepared and will prepare in respect of the SpecifiedMatters and the other matters into which it may inquireare intended to canvass some of the issues which mayarise within this broader picture. The papers aredesigned to encourage debate and written submissionsupon a wide range of issues which might be relevant tothe Commission's tasks.Discussion Paper No. 1This paper deals with Specified Matters 1 and 2,concerning secrecy laws of the State as they apply tothe public sector and the operation of Cabinet secrecy.Secrecy laws are embodied in many statutes and arealso found in the common law of Western Australia.Cabinet secrecy is a matter of convention. The initialtask of the Commission is to examine and determinewhether the operation of these laws and convention gobeyond what is justifiable in protecting the legitimateinterests of the Government, the public sector and thepeople.This paper identifies some of the issues which may berelevant to the Commission's task and providesinformation and background on those issues. The issuesidentified and information provided are not intended tobe an exhaustive list and submissions may address anyother relevant issues.The Commission invites people and organisations tomake written submissions on the issues set out in thisDiscussion Paper.Those preparing submissions should feel free toinclude any other issues they consider relevant,whether or not they are mentioned in this paper.

GUIDELINES FOR SUBMISSIONSTO COMMISSION ON GOVERNMENTThe following are guidelines designed to assistmembers of the public wishing to make a submission tothe Commission on Government (COG).

STYLEPlease ensure, as far as possible, that submissions:(a) are legible, and preferably machine-typed withsingle line spacing;(b) use headings and sub-headings;(c) have numbered pages;(d) clearly identify the author by showing name,address and telephone number; and(e) are bound together with a staple or secured witha paper clip and are on A4 standard sizedpaper; OR

are submitted as computer disks, preferablycompatible with Word Perfect 6.0a. (This isespecially important for lengthy submissions.)

CONTENTYour submission should be divided into the followingprincipal parts:1. SHORT SUMMARY - this should be aVERY BRIEF precis of the specific matteryou are addressing, your concerns and what youare proposing. This should clearly state whichSpecified Matter you are addressing.2. SUBMISSION/ARGUMENT - in this sectionyou can expand on your concerns about theissues that you are addressing, outlining how youwill back this up with factual material andargument which support your views.3. SUPPORTING MATERIAL - here youpresent any material, item by item, referring tohow each item supports your argument. Thismay take the form of examples of actual events,copies of documents, or any other evidencerelevant to your submission.4. RECOMMENDATIONS - you need to clearlypresent your recommendations addressing theconcerns identified by your submission. Theyshould be listed in order of importance andnumbered.Please send your submission to:

The ChairpersonCommission on Government6th Floor, May Holman Centre32 St Georges TerracePerth WA 6000Fax: (09) 222 0522Phone: (09) 222 0544

Please telephone Elizabeth Gauci on(09) 222 0554 for further information, discussionpapers, seminar dates and due dates for submissions.

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PART II - Cabinet Secrecy

1 INTRODUCTION

2 THE WESTERN AUSTRALIANCONTEXT

2.1 What is Cabinet?2.2 What is the Executive Council?2.3 What are the roles of Cabinet and theExecutive Council?2.4 How does Cabinet operate?2.5 What is the role of the ParliamentarySecretary to Cabinet?2.6 What records are created by the Cabinetprocess?2.7 What records are retained?2.8 What Cabinet records can the public see?

3 ISSUES FOR CONSIDERATION

3.1 The case for Cabinet secrecy3.2 The case against Cabinet secrecy3.3 Exemptions under the Freedom of

Information Act3.4 Access to Cabinet documents in the

course of litigation3.5 The Federal Cabinet system compared3.6 What effect can Cabinet secrecy have onaccountability?3.7 How should the results of Cabinet

meetings be released to the public?3.8 Should the Auditor General have access

to Cabinet documents?3.9 What are the record keeping

requirements of Cabinet sub-committees?

4 SUMMARY

REFERENCES

APPENDIX 1

3

ISBN 0 7309 6900 2Copyright Commission on GovernmentMarch 1995

TABLE OF CONTENTS

Part I Secrecy Laws

1 INTRODUCTION

2A THE WESTERN AUSTRALIANCONTEXT

2.1 Freedom of Information exemptions2.2 Statutory provisions2.3 The common law

2B ROYAL COMMISSION

Why is disclosure important?


3.1 Are the existing secrecy provisionsjustified?

3.2 Options for achieving secrecy withoutrelying on statutory provisions

3.3 Changing the public service culture3.4 Access by the media to public servants3.5 Commercial confidentiality3.6 Responding to competitive tendering andcontracting

4 SUMMARY

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This paper is divided into two parts.

Part I :

The secrecy laws of the State, both statutoryand common law, as they apply to informationpossessed by government, its officials andagencies (Specified Matter 1); and

Part II :

The operation of Cabinet secrecy (SpecifiedMatter 2).

PART I - SECRECY

1 INTRODUCTION

There must be a strong presumption in a democraticsystem that all aspects of government should beopen to public scrutiny. Without this openness,governments cannot be held accountable for theirmistakes, nor can there be effective debate onpublic policy. Governments may resist publicaccess to information that can be used to criticise orembarrass them. Hence, claims that secrecy isnecessary must be supported by good reasons andmust work, on balance, to promote the interests ofthe people, rather than the comfort and convenienceof the government of the day and its agencies.

2A THE WESTERN AUSTRALIANCONTEXT

The Western Australian government operates undera variant of the Westminster model. This model hastraditionally favoured a high level of secrecy. Thisculture of secrecy has been preserved in bothstatutory provisions and common law. The RoyalCommission into Commercial Activities ofGovernment and Other Matters considered thatthese laws ‘go far beyond what is justifiable inprotecting the legitimate interests of governmentand of those dealing with government’ (WA RoyalCommission, 1992: II 2.3.1).

There is agreement that certain information in thehands of government should remain confidential to

protect the interests of individuals, companies orgovernment. However, the extent of the currentsecrecy laws has been questioned.

2.1 Freedom of Information Exemptions

The introduction of the Freedom of Information(FOI) Act in Western Australia in 1993 created alegally enforceable right of access to information inthe possession of government agencies. It was amajor step towards open government. There are anumber of exemptions contained in the Act. Theseinclude some documents relating to:

• Cabinet and the Executive Council• Inter-government relations• Personal information• Commercial or business information• Law enforcement, public safety andproperty security• Deliberative processes• Legal professional privilege• Confidential communications• The State’s economy• The State’s financial or property affairs• Effective operation of agencies• Contempt of Parliament or court• Adoption or artificial conception• Certain secrecy provisions• Precious metal transactions.

In addition to these exemptions, there are numerousspecific statutory secrecy provisions and commonlaw restrictions preventing the release ofinformation.

2.2 Statutory Provisions

Existing secrecy provisions

Appendix 1 lists statutory provisions in force inWestern Australia as at January 1995 whichimpose secrecy obligations. This list coversapproximately 100 Acts and regulations whichrestrict the use which government departments andother public bodies may make of the informationthey acquire.

These secrecy provisions range across a broadspectrum according to whether:

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• Some statutory instruments which havesurvived the repeal of the Public Service

Act 1978.

Sometimes, oaths or affirmations of secrecy arealso required.

2.3 The Common Law

References to the common law generally mean thatbody of law based on judicial decisions and custom,as distinct from statute or legislative law.

There are certain common law actions whichprotect information supplied in confidence.

The courts have drawn distinctions in developingthese common law actions according to whether theinformation is:

• generated within government for its ownuse, or

• from a third party (that is information givento the government by private citizens eithercompulsorily or of their own accord).

It seems that the courts have recognised thedifferent issues which apply when the protectionsought is the privacy interests of individuals ratherthan the protection of commercial confidences ofgovernments. When the government is seeking topursue a common law action for an alleged breachof confidence, an additional public interestrequirement may have to be established.

This was well summarised by Justice Mason inCommonwealth of Australia v John Fairfax andSons Ltd (1980) 32 ALR 485, 492-3, when hestated that the common law was developed to:

... protect the personal, private and proprietaryinterests of the citizen, not to protect the very differentinterest of the Executive Government ... when Equityprotects government information it will look at theinformation through different spectacles.

Accordingly the court will determine the government’sclaim to confidentiality by reference to the publicinterest. Unless disclosure is likely to injury (sic)the public interest, it will not be protected.

• they forbid disclosure in general terms;

• they forbid the release of information by apublic employee ‘except in the performanceof his duty’ or ‘except in such cases as

may be required by law’ or ‘except withthe consent of the person carrying on thebusiness’ etc;

• they permit disclosure to a named class ofpersons or in stated circumstances or with

the consent or authority of a higher official;

• the information is sought to be protectedfrom the public or from other government

agencies.

They also differ according to:

• the kinds of protection they offer;

• the levels of penalty;

• whether there is some exemption or scopefor permitted disclosure (ie disclosure to

certain law enforcement agencies or withthe consent of the supplier or in the courseof legal proceedings); or

• whether there is provision for ministerialwaiver.

These provisions display a diversity of draftingstyles, some being very narrowly focused whileothers seem to prohibit any disclosure.

Requirement for public servants to maintainsecrecy

Traditionally, public servants have been restrictedin their right to reveal information relating to thework of government by a network of statutory rulesand administrative directions. In WesternAustralia, these include:

• The Criminal Code Act 1913 s. 81

• Public Sector Management Act 1994 andassociated administrative instructions

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Possible common law actions

Whilst the law is still developing, it seems thatthere are principally three common law actionswhich may be relied upon to protect information.These are:

• the equitable duty of confidentiality arisingout of circumstances in which information

was confided to a government employeeor third party;

• an equitable (fiduciary) duty of fidelityowed by an employee preventing anemployee performing any act which placesthe interests of the employer at risk;

• an implied or express contractual term offaithful service.

Some general comments

• These three common law actions are not theonly possible claims which can be relied

upon in the courts to protect confidentialinformation.

• The common law is fluid and still evolvingas it develops through judicial decision-

making on a case by case basis. Gaps inthe law have been found and few actionsare generally brought.

• These common law duties may operatealongside statutory duties.

• There is confusion as to the extent of thepublic interest requirement and when such

considerations will justify an unauthoriseddisclosure or protected disclosure throughwhistleblower legislation.

• The appropriateness of the remediesavailable to a successful litigant have also

been questioned.

2B Royal Commission

Why is disclosure important?

The Royal Commission identified two principlesthat express the values underlying our constitutionalarrangements:

It is for the people of the State to determine bywhom they are to be represented and governed.(WA Royal Commission, 1992: II 1.2.3)

The institutions of government and the officialsand agencies of government exist for the public, toserve the interests of the public. (WA RoyalCommission, 1992: II 1.2.5)

The second of these principles may lead to the needfor an assessment of whether and when secrecy isnecessary. Clearly, if the interests of the people areto be served by the institutions of government, thepeople must know what these institutions are doingin their name. If, in a democratic society, peopleare to participate in and influence the decisions ofgovernment, then access to information is essential.If the people have a right to know, then there is acorresponding obligation on the government and itsagencies to disclose their activities. It is arguedthat much of the secrecy maintained by governmentis at best unnecessary and at worst lends itself tothe concealment of impropriety or incompetence.‘Openness in government is the indispensableprerequisite to accountability to the public’ (WARoyal Commission, 1992: II 2.1.3).

In recent years various inquiries (Fitzgerald, 1989,WA Royal Commission, 1992) have identifiedinstances in which secrecy has enabled governmentsto conceal impropriety not only from the public, butalso from the Parliament. At times, this hasenabled a Premier or an inner Cabinet to concealmatters even from the full Cabinet.

The ultimate check on public maladministration ispublic opinion, which can only be truly effective ifthere are structures and systems designed to ensurethat it is properly informed. (Fitzgerald, 1989: 126)

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3.1 Are the Existing Secrecy ProvisionsJustified?

Whilst there are legitimate needs for secrecy, manycritics have suggested that these interests are bestprotected by means other than the enactment ofsecrecy provisions. Before suggesting, however,that many of the provisions outlined in section 2.2above are obsolete and should be repealed, it isnecessary to look closely at each of these provisionsand the mischief they are attempting to prevent andask:

• just what is the legitimate interest that issought to be protected, and

• does the statutory provision go beyond whatis justified?

Some of the legitimate interests which are said tojustify the retention of such provisions are:

• the privacy rights of individuals;• the need for protection of informationwhich, if disclosed, would imperil state

interests;• commercial secrets in government hands;• protection of the information supplier toensure candour and frankness in disclosure;• proper regulation of the conduct of officials.

On the other hand, such provisions may impede thefollowing public interests:

• proper scrutiny of actions of governmentofficials;• open government considerations;• the free flow of information;• disclosure of government wrongdoing.

Important Issues

• How can the legitimate need for secrecybe reconciled with the need for openness?

• What legitimate interests do statutorysecrecy provisions seek to protect?

• Are there more appropriate mechanismsfor protecting such interests?

• If statutory secrecy provisions are to beretained, how can they be better drafted

to clarify what information can/cannotbe released?

• Is there a need for so many rules,regulations and administrative codes tocontrol the use of information by publicservants?

Ministerial review

The Commission has asked the ministersresponsible for the various secrecy provisions inforce to clarify the legitimate interests which are tobe protected by the particular provision(s). Theministers have also been asked whether they feel theprovision(s) go beyond what is justified to protectsuch an interest(s).

3.2 Options for Achieving Secrecy withoutRelying on Statutory Provisions

The protection given by statutory secrecyprovisions is generally not subject to time limits andremains in force even after the information which isprotected is thoroughly out of date and harmless.

The large number of specific secrecy provisions andthe diversity of protection they seek to providecould result in confusion and complexity. Theseprovisions were enacted over a number of years inan uncoordinated fashion.

If some, or all of the existing secrecy provisionswere to be repealed, then access to such documentswould be governed solely by the common law duties

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of confidentiality and various legislation.

Prominent measures designed to achieve many ofthe legitimate purposes of secrecy provisions areFOI legislation, privacy legislation and codes ofconduct. These options are discussed below.

Freedom of Information Act 1992 (WA)

The FOI Act sets out a statutory scheme to regulatepublic access to such information.

It overrides most secrecy provisions except forthose contained in the following three Acts:

Equal Opportunity Act 1984;Legal Aid Commission Act 1976; andParliamentary Commissioner Act 1971.

These exceptions are subject to a sunset clausewhich is currently under review by the AttorneyGeneral.

If all the existing secrecy provisions were repealed,the legitimate need for secrecy may still be achievedby the exemptions outlined in 2.1.

It is, however, possible to pass legislation thatcontains a provision which specifically excludes itsoperation from the FOI Act. One example is foundin S.250(6) of the Fish Resources Management Act1994 which sets out a statutory secrecy duty which‘... has effect despite any provision of the Freedomof Information Act 1992’ (this Act will come intoeffect on 1 July 1995). It would be of somesignificance if legislators increasingly relied uponsuch clauses to oust the FOI scheme and effectivelycreate additional secrecy provision exemptions.

Important Issues

• If existing secrecy provisions were tobe repealed, would the legitimateinterests which they seek to protect be

adequately covered by FOI exemptions?

• Is there a need for secrecy provisions inview of the many exemption provisions

which are found in FOI legislation?

• Should any secrecy provisions beexempted from the operation of the FOI

Act?

• Are secrecy provisions compatible withthe aims/objectives of FOI legislation?

• Should legislators be able to enactlegislation which specifically precludes

the operation of the FOI Act andeffectively creates additional secrecy

provision exemptions?

Should FOI fees/charges be used to achievesecrecy?

A possible method of maintaining secrecy isthrough the deterrent effect of the FOI fees andcharges.

The FOI legislation in all States and Federallyimposes fees and charges and there is significantvariation between the fee structures set up undereach regime.

With governments being conscious of revenueconstraints there is an increasing trend towards theadoption of user pays principles. However, whilstthere is a considerable cost for governments inoperating an FOI scheme, it could be contrary tothe aims and objectives of such legislation to relyupon the deterrent impact of fees and charges toreduce costs.

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Is there a need for privacy legislation?

One frequently quoted reason for retaining secrecylaws is that they protect the privacy interests of thepublic.

At the Federal level, the Privacy Act 1988 (Cth)establishes a Privacy Commissioner and sets outcertain minimum privacy standards. Thesestandards are now an established feature of theregulatory environment within whichCommonwealth Government agencies and thefinance and banking sectors operate.

It is worth noting that there have been someinstances where employees of government agencieshave improperly traded in information (see NewSouth Wales, Independent Commission AgainstCorruption, 1992).

It may be considered that existing statutory,common law and FOI protections are inadequateand that specific privacy legislation needs to beenacted.

Important Issue

• How is the right balance struck betweenthe right to privacy and the right to know?

Disciplinary structures/codes of conduct

The present secrecy provisions give little guidanceto public officers about what information is, or isnot, permitted to be released. Instead of acting as adeterrent to unauthorised disclosure of information,poorly drafted provisions can generate confusionand result in the unintentional withholding ofinformation.

On the other hand, various inquiries have found thatthese provisions do not adequately cover theimproper trading of such information.

Important Issue

• Are the present statutory and commonlaw obligations of confidentialityadequate and should there be someguidance to assist public officers tocomply with the law?

3.3 Changing the Public Service Culture

The Information Commissioner notes that someagencies have a tendency to look for ways ofexempting documents rather than releasing them‘... they have not yet internalised accountability andopenness as part of their organisational culture.FOI demands a change in the mindset of manyagencies’ (Western Australia, Office of theInformation Commissioner, 1994: 27).

The large number of secrecy provisions in statutesmay be a factor in preventing a change in theculture of secrecy that pervades the public sector.It is also worth noting the apparent conflict in themessages being sent to public officials. On the onehand they are required to comply with the manygeneral and specific secrecy provisions discussedabove. On the other hand there are moves towardsmore open government through the FOI Act and theOfficial Corruption Commission Act 1988.

Important Issues

• Does the public service have a culture ofsecrecy?

• If there is a secrecy culture in the publicservice, how can it be changed?

3.4 Access by the Media to Public Servants

Authorised or official access for the media to publicservants is restricted by the official secrecy lawsunder which public servants operate. PublicService Regulations, Administration Instructionsand the Code of Conduct for Public Servants denymedia access to all public servants unless it is partof their official duties.

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Under the Westminster tradition, only ministersmay speak for their departments, not publicservants. It is argued that the restriction of mediaaccess to public servants protects the anonymityand political neutrality of public servants, therebyenabling continuity of administration, even thoughgovernments may change.

Important Issues

• If public servants could releaseinformation would this undermine the

government and cause political instability?

• Would media access to public servantsresult in the public service not being seenas politically neutral?

• Can media access to public servantsenhance openness in government?

3.5 Commercial Confidentiality

The Royal Commission was particularly concernedwith claims made by agencies of government forcommercial secrecy in respect of their ownactivities.

While it conceded that it would not be feasible toprevent governments from being involved incommercial activities altogether, nevertheless, itrecommended certain additional accountabilitymechanisms.

Similarly, the Commission on Accountabilitychaired by Sir Francis Burt raised particularconcerns about the trend to include secrecyprovisions in contracts entered into by state ownedentities (Burt, 1989). These provisions oftenexclude parliamentary or ministerial accountability.

Important Issues

• How can the public interest inaccountability and openness be

adequately protected when thegovernment itself is claiming to relyupon public interest grounds to supporta claim for secrecy?

• How can appropriate accountabilitymechanisms be devised to respond to the

different legal structures through whichgovernments now conduct their

commercial activities?

• If governments are to be permitted toundertake commercial activities, how can

the law develop to ensure that there areadditional accountability mechanisms tosafeguard against abuse?

• How can the law distinguish betweencommercial activities and political

activities?

3.6 Responding to Competitive Tendering andContracting

In the public sector there is an increasing trendtowards contracting services to the private sector.Initially contracting has been limited to ‘non-core’areas, such as cleaning or information technologyservices, but increasingly ‘core’ activities, such asbus or health services are being contracted out.

Documentation in the possession of privatecontractors is not subject to FOI legislation. In theFederal Parliament legislation has recently beenenacted to provide contracted case management forjob seekers (Employment Services ConsequentialAmendments Act 1994 [Cth]). The consequentialamendments to the Federal FOI Act provide rightsof access to documents relating to case managementservices that are held by contracted case managers.Amendments have also been made to the FederalOmbudsman Act to empower the Ombudsman toinvestigate complaints about contracted casemanagers. No similar legislation exists in WesternAustralia.

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Similar access to information issues could alsoapply to the many organisations that receive publicmoney through grants.

Important Issues

Should the FOI Act be extended to cover:

• contractors performing ‘contracted out’government services?

• contractors supplying goods and servicesto the government?

• recipients of government funding grants?

4 SUMMARY

There is growing concern about abuse of executivepower. The traditional Westminster chain ofaccountability often does not conform to politicalreality. Increasingly, additional lines ofaccountability are thought to be necessary.

The notion of open government entails a right ofaccess to information held by governments.Democratic principles hold that people are entitledto information about how their government operatesso that governments are made more responsive andaccountable.

Secrecy laws may run counter to such notions andtheir present day relevance is questionable. Tosome extent these laws do protect legitimateinterests such as the privacy rights of individuals,commercial information and other informationwhich, if revealed, would not be in the publicinterest. Yet, FOI legislation, privacy legislation,codes of conduct for public officials and other suchmechanisms, may be a more appropriate and lessconfusing means of protecting these legitimateinterests.

In this paper we have dealt with only a few of themany issues relating to secrecy. These haveincluded:

• the statutory and common law secrecyprovisions currently in operation;

• FOI legislation and its usefulness;

• arguments used to support secrecy and thearguments against secrecy;

• secrecy requirements imposed upon publicservants and the changing public service

culture;

• alternative means of affording protection tothe interest presently protected by secrecy

laws ie: privacy laws, FOI legislation andcodes of conduct;

• commercial secrecy and the specialproblems raised by such claims.

In examining these issues it is useful to ask:

• When can secrecy be legitimately claimed?

• Should a distinction be made between thesecrets of a government and how

governments handle other people’s secrets?

• Is there any inconsistency betweenlegislation which imposes secrecy andlegislation which creates rights of access toinformation?

• Should the existing secrecy provisions berepealed, redrafted or rationalised?

• Should any secrecy provisions be exemptedfrom the FOI legislation?

• Are the existing secrecy obligationsimposed on public servants an appropriate

means of regulating their conduct?

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PART II - CABINET SECRECY

1 INTRODUCTION

The argument for open rather than secretivegovernment has often been directed at Cabinetitself, as strict confidentiality surrounds Cabinetproceedings and documents. It is said that Cabinetcould not operate effectively if such confidentialitydid not apply. However, secrecy can also be usedby executive governments to insulate themselvesfrom criticism and to conceal mistakes. While theremay be legitimate arguments for Cabinet secrecy,these interests should be balanced against the publicinterest in ensuring that governments are fullyaccountable to the people they exist to serve.


2.1 What is Cabinet?

Cabinet is a meeting of the ministers of thegovernment, chaired by the Premier. It has no legalor constitutional basis, and the government of theday decides its system of operation. Cabinetdecisions have no standing until put into effecteither by a decision of Executive Council or by theresponsible minister. There are establishedconventions which give substance to the institutionand its formal operation.

2.2 What is the Executive Council?

The Constitution Act 1889 established theExecutive Council but did not define its operation.It comprises the Governor as chairperson andmembers of the Ministry. The usual practice is formeetings to be conducted by a quorum of theGovernor and any two Ministers. ExecutiveCouncil meets regularly and the Governor mustconvene a meeting if advised to do so by thePremier.

2.3 What are the Roles of Cabinet and theExecutive Council ?

Cabinet

Cabinet’s role is to make the major decisions of theGovernment, such as:

• matters which affect the portfolios of morethan one minister;

• significant policy decisions;

• matters which have a major effect onemployment;

• authority to draft legislation;

• action in respect of Parliamentary orCabinet committees;

• matters affecting relationships with othergovernments; and

• certain senior appointments.

Executive Council

The Executive Council’s main purpose is toformalise matters concerning the government of theState including:

• the allocation to ministers of responsibilitiesfor Acts, departments and instrumentalities;

• the proclamation of Acts passed byParliament;

• the appointment of senior public officersand members of the judiciary;

• appointments to government boards andcommittees;

• the making of orders, regulations and by-laws.

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recommended and a summary of reasons forthe preferred option;

• who has been consulted and the degree ofacceptance / rejection that has resulted fromthe consultation process;

• the urgency of the matter, particularlywhere legislation is involved;

• background information, includingreferences to previous Cabinet decisionsabout or related to the matter;

• implications for the FinancialAdministration and Audit Act, or otherActs;

• impact of the submission on small business;

Cabinet Comment Sheets

These contain the views of other departments andagencies. The minister responsible for the agencieswhich submit Cabinet Comment Sheets usuallysigns the Comment Sheets.

Cabinet Summary Sheets

These are included in submissions and summarisethem without providing additional information.

Cabinet Agenda

The Premier decides what will appear on theagenda. The agenda follows a standard format.

Cabinet Decision Sheets

These record Cabinet decisions. They contain keyinformation from each Cabinet submissionincluding the title of the submission, its date, thesponsoring minister(s), the decision, the date of thedecision and to whom copies have been sent.

Cabinet Decision Sheets are prepared by the Officeof the Parliamentary Secretary of the Cabinet andsigned by the Premier.

2.4 How does Cabinet Operate ?

As Cabinet is not formally established, there are nolegal rules about how it operates. Cabinet‘considers, discusses, decides, co-ordinates,administers and supervises government activity, andexplains and defends its decisions, policies, andactivities to Parliament and the people’ (Jaensch,1992: 153). But how it does these things is amatter decided by the Premier of the day and to alarge extent depends upon the personality of thatPremier. The Premier controls the agenda. AParliamentary Secretary to Cabinet, who is amember of Parliament, and the Ministry of Premierand Cabinet provide administrative support. Publicservants in Western Australia do not attendCabinet.

2.5 What is the Role of the ParliamentarySecretary to Cabinet?

The role of the Parliamentary Secretary differsaccording to the particular requirements of thePremier. Essentially the role of the Secretary is toensure that all arrangements are in place prior tothe Cabinet meeting and that the decisions ofCabinet are properly recorded, circulated andretained for archive purposes.

2.6 What Records are Created by the CabinetProcess?

The following documents are created by theoperations of Cabinet:

Cabinet Submissions

When an issue requires Cabinet approval a ministermakes a submission to Cabinet. The WA CabinetHandbook (Western Australia, Ministry of Premierand Cabinet, 1994: 10) states that a Cabinetsubmission should contain:

• all relevant information, including theimpact on sensitive issues;

• resource and budget implications;

• recommended course of action;

• an outline of options other than those

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No record is kept of the views of individualministers about a submission and no record is keptof the ‘votes’ of individual ministers.

Cabinet Attendance Sheet

The Parliamentary Secretary of the Cabinet recordswhich ministers attended Cabinet meetings.

Briefing Sheet known as ‘Blues’

‘Blues’ first came to public attention in the RoyalCommission’s report (WA Royal Commission,1992: 1 (2) 9.12.4 - 9.12.6). ‘Blues’ are essentiallya briefing sheet, on blue paper, prepared for thePremier. ‘Blues’ were initiated by the BurkeGovernment and have been retained by succeedingPremiers up to the present, although their formathas changed slightly. In their current form, ‘blues’are a highly summarised briefing to the Premier onissues relevant to the matter under consideration.They are created by the Policy Office of theMinistry of Premier and Cabinet. They are for thePremier’s eyes only.

Cabinet Record Books

There are leather bound volumes comprising asummary of each Cabinet submission and decisiondating back to 1 July 1914. These are currentlyprepared in the office of the ParliamentarySecretary of the Cabinet and held by the Cabinetand Parliamentary Services Branch, (CPSB).

Computerised index of all Cabinet submissionsand decisions

The CPSB of the Ministry of Premier and Cabinetmaintains a computerised index of all Cabinetsubmissions and decisions.

2.7 What Records are Retained?

The original copy of Cabinet Agendas, Submissionsand Decisions, with all appendices and attachmentsare kept by the CPSB. These documents areperiodically sent to State Archives. Only papersdating from 1993 (the date of the presentgovernment’s election) are held by CPSB. All otherdocuments are held in archives.

The computerised index of all Cabinet submissionsand decisions and all Cabinet records of theprevious government are archived immediatelyupon the change of government.

‘Blues’ are destroyed after each Cabinet meeting.

2.8 What Cabinet Records can the Public See?

The public may apply for access to Cabinet recordseither through an application to Archives or FOIlegislation.

Applications for archives access

Applications for records created more than 30 yearsbefore the date of application are accessible throughState Archives. Records less than 30 years old atthe date of application and which fall outside theexemption period of the FOI legislation may also beapplied for as archival material. In these casesState Archives refers the request to the Ministry ofPremier and Cabinet to determine whether accessshould be granted.

Applications for access under FOI legislation

Under the FOI Act, certain information relating tothe deliberations or decisions of an executive body(which includes Cabinet) is exempt from disclosure,but not where the information is merely factual,statistical, scientific or technical. The exemptionsapply:

• for 15 years after the matter came intoexistence for matter that was created before1 November, 1993; and

• for 10 years after the matter came intoexistence for matter that was created after 1November, 1993.

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3.1 The Case for Cabinet Secrecy

Cabinet proceedings and documents havetraditionally been shrouded in secrecy. Some seesecrecy as essential for the proper and efficientconduct of the affairs of state because:

• the sensitive nature of matters placed beforeCabinet would be prejudicial to the state

interest if released;

• there is a need for candour and frankness inthe deliberative process;

• confidentiality ensures that Cabinetdeliberations do not become subject to

criticism of a premature, ill-informed ormisdirected nature;

• a strong, disciplined Cabinet process isthought to be essential for effectivegovernment policy making and debate;

• it is consistent with the convention ofcollective ministerial responsibility (which

traditionally holds that Cabinet andministers are collectively responsible toParliament, and through it to the people, forall their actions and that if a minister cannotagree publicly with the decisions of Cabinetthen he/she must resign);

• Cabinet is called upon to deal withappointments to public offices. Disclosureof the discussions and identities of suchappointments would raise privacy concerns.

The case for secrecy is reflected in most FOIlegislation which specifically exempts Cabinetdocuments and deliberations from public accessexcept in limited circumstances.

3.2 The Case against Cabinet Secrecy

On the other hand, it is argued that Cabinet secrecyworks against the idea that government is fullyaccountable to the people it exists to serve, because:

• there is a potential for secrecy to be used toconceal poor administration, corruption or

politically embarrassing matters from thepublic;

• it is contrary to the notion of opengovernment;

• the convention of collective ministerialresponsibility is often breached and thepersonal attitudes of ministers arefrequently leaked to the media. Anexamination of the convention as it appliesleaves doubt as to its usefulness as a meansof securing responsibility;

• many important decisions are madeelsewhere in the governmental process;

• many issues placed before Cabinet aremundane, or are matters which have alreadybeen debated in the press.

Important Issues

• How relevant are the arguments advancedfor or against Cabinet secrecy?

• Could the convention of collectiveministerial responsibility operate if

Cabinet deliberations and documentswere not secret?

• Governments require exacting andonerous reporting requirements andduties from corporate directors, trusteesand those holding fiduciary offices. Is it

consistent to exclude ministers fromsimilar responsibilities in view of thepublic trust that is placed upon them?

• Does Cabinet secrecy enhance the powerof the executive and shield it from

parliamentary/public accountability?

• Who should be the final judge of whatCabinet can disclose?

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3.3 Exemptions under the Freedom ofInformation Act

Cabinet document exemption

Documents whose disclosure would reveal thedeliberations or decisions (unless purely factual) ofthe Cabinet are generally exempt under most FOIlegislation.

One of the main public interest arguments advancedfor exempting Cabinet documents is the conventionof collective ministerial responsibility. If this is so,only those documents which would undermine thisconvention should be excluded.

A frequent criticism of the Cabinet documentexemption in most FOI legislation, is that it isdrafted too broadly and protects many documentswhich, if revealed, would not damage thefunctioning or unity of the Cabinet process.

Deliberative process exemption

The deliberative process exemption is found in mostFOI schemes and is designed to protect documentsthat would disclose the internal working ordeliberative process of government. This is a wideexemption which protects documents revealing thepolicy and decision making processes ofgovernment. Cabinet documents may also beexempted under this clause, but there is a publicinterest test attached to this exemption.

Important Issue

• Are Cabinet document exemptionsconsistent with the general aims of

the FOI Act, or are they too broad?

3.4 Access to Cabinet Documents in the Courseof Litigation

A party to litigation may seek access to documentswhich disclose Cabinet deliberations or decisions.The courts must consider the issue of the degree ofimmunity which should be given to suchdocuments.

In making such a decision the courts weigh up thecompeting interests, namely:

• the possible harm that would be done if thematerial were to be disclosed, versus

• the need to ensure that the administration ofjustice shall not be frustrated.

Recent cases suggest that the courts are morewilling to question the basis of claims to excludeCabinet documents from production. Nevertheless,in a recent High Court judgement (Commonwealthof Australia v Northern Land Council (1993) 112ALR 409), the majority strictly confined thecircumstances in which Cabinet documents wouldbe permitted for inspection and stressed thesoundness of arguments supporting non-disclosure.

Important Issues

• Is there a need for some legislativeclarification of the status of Cabinetdocuments in court proceedings?

• Is the case by case balancing approachadopted by the court preferable to alegislative scheme which does not have

the same flexibility?

• Is it appropriate for the courts to arbitratebetween such important public interests?

3.5 The Federal Cabinet System Compared

By way of comparison, the records that are kept byFederal Cabinet are those contained in:

• Cabinet notebooks;• formal minutes/submissions.

The essential difference between the two is thatCabinet notebooks are memory aids to assist withthe drafting of formal minutes and do record theindividual contributions of ministers, whereasCabinet minutes do not record individualcontributions and are merely a record of the finalcollective decision reached.

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Cabinet Notebooks

Officers of the Department of the Prime Ministerand Cabinet attend Cabinet and make as full arecord as possible of the discussions.

Cabinet notebooks have always been treated ashighly confidential as they contain the personalviews of individual ministers. They cannot bereproduced or shown to any unauthorised person,and access is not allowed except on the authority ofthe Secretary to the Cabinet. Ministers do not haveaccess to these notebooks.

The Prime Minister and Cabinet (MiscellaneousProvisions) Act 1994 (Cth) allows the public forthe first time to have access to notebooks after aperiod of 50 years. At the same time it specificallyexempts such notebooks from access under theFederal FOI legislation prior to the 50 year accessprovision.

Minutes

Federal Cabinet minutes record the collectivedecision reached, but do not record individualcontributions.

Western Australian Cabinet system of recordkeeping

Currently, no record is kept of the discussions thattake place in Cabinet or of the individual minister’sviews on any issue.

Arguments in favour of the status quo maintain thatto keep such records would inhibit frank and fulldebate of issues. Keeping records could be a threatto the concept of collective responsibility, wherebyministers having expressed their views in theprivacy of the Cabinet room are bound by thedecision of Cabinet and support that decision inpublic. Also as Cabinet has no legal orconstitutional base and its method of operationdepends on the style of the Premier, it isinappropriate to attempt to lay down rules for itsoperation.

Arguments supporting detailed records rely on theneed for accountability and the ability to determinewhy decisions were taken and who had

responsibility for them. Such minutes would haveprotection from scrutiny under FOI for at least adecade and could, if required, be protected fromarchives access for a further 20 years.

Important Issues

• Is the current system of recordingCabinet deliberations/decisions inWestern Australia adequate?

• Should public servants be involved in thenote taking process, rather than a

parliamentarian?

• Should Cabinet minutes/agendas beaccessible to Parliament/the public?

• Should formal minutes be made and if sowhat should they contain?

• Would minutes recording the individualcontributions of ministers impair the

convention of collective ministerialresponsibility?

• What sanctions should apply whenCabinet minutes are inaccurate and who

determines accuracy?

• Should deliberative notes such as ‘blues’be kept and archived?

3.6 What Effect can Cabinet Secrecy have onAccountability?

Cabinet has a central role in our system ofgovernment. Section 2.3 of this paper outlined thetypes of issues considered by Cabinet and it is clearthat Cabinet acts as the policy centre ofgovernment. Because of the central role of Cabinet,the implications of a secretive Cabinet aresignificant.

If the Cabinet operates under a blanket of totalsecrecy, it may prove impossible to ensure that theprinciples of collective responsibility and Executiveaccountability to the Parliament are operating.This may result in the Executive, or even only

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Important Issues

• Should Parliament be informed of theresults of Cabinet meetings before any

other forum such as the media or theParty room?

• Is the media a more effective forum forinforming the public and Parliament

about the outcomes of Cabinet meetings?

3.8 Should the Auditor General have Access toCabinet Documents?

There is some debate about whether the AuditorGeneral has, or should have, access to Cabinetdocuments. Section 80 of the FinancialAdministration and Audit Act 1985, grants theAuditor General powers of investigation in relationto Treasury, departments and statutory authorities.Cabinet is not mentioned. The Royal Commissionwas of the view that this legislation should beamended to enable the Auditor General to call forCabinet documents (see WA Royal Commission,1992: II 3.10.15).

However, many of the matters placed beforeCabinet do not involve financial or performancerelated issues and it may be consideredunreasonable to permit the Auditor Generalunlimited rights of access.

Important Issues

• Should the Auditor General have accessto all Cabinet documents?

• If so, should the Auditor General be freeto report the information to theParliament?

3.9 What are the Record Keeping Requirementsof Cabinet Sub-Committees?

The number, role and functions of Cabinet sub-committees have expanded to streamline theCabinet process.

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parts of it (such as the Premier and an inner core ofministers) being unaccountable.

Important Issues

• If all ministers are not kept fullyinformed of issues that should go before

Cabinet, can they be held accountable forthe actions of the few that were keptinformed?

• Can Cabinet secrecy be used as amechanism to avoid collectiveresponsibility?

• Should basic records be kept, and madepublicly available?

3.7 How Should the Results of Cabinet Meetingsbe Released to the Public?

The method of conveying the results of Cabinetmeetings to the public or the media varies with eachgovernment. The current practice is for Cabinetdecisions to be conveyed first to the Party room (iethe Members of Parliament in the coalition).Following this an announcement may be made tothe media through a press conference or throughpress release.

There are, however, no firm conventions orprocedures on the public announcement of Cabinetdeliberations. It has been known for pressconferences or announcements to be made during aCabinet meeting, and for the minister or Premier toreturn to the Cabinet meeting following theannouncement.

As the Executive is responsible to the Parliament itcould be argued that Parliament is the proper forumfor any public announcements, although it seemsthat Parliament is rarely the forum of first choicefor Cabinet when making announcements of itsdeliberations.

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Little is known about the record keepingrequirements of Cabinet sub-committees. Muchwould seem to depend upon the nature of thecommittee’s deliberations and composition.

Any formal records that are made only recordcollective decisions and not the individualcontributions of ministers. Sub-committees operateunder similar obligations of confidentiality as applyto Cabinet.

Important Issue

• To what extent should the decisions ordeliberations of Cabinet sub-committees

be subject to public or other scrutiny?

4 SUMMARY

In any discussion of Cabinet secrecy and its placein a democratic system of government, it isnecessary to weigh up the competing arguments andfocus on :

• the possible implication which would resultif Cabinet deliberations or documents

become more accessible to the public andthe Parliament; and

• appropriate mechanism(s) to ensure greateropenness and accountability without

detracting from the efficient operation ofgovernment.

Throughout this paper a series of questions hasbeen raised to encourage public debate on thisissue. Some of these are :

• What degree of secrecy should be given tothe Cabinet decision making process and

documentation?

• Would the convention of collectiveresponsibility be destroyed or damaged byreducing the level of secrecy?

• Is secrecy necessary for Cabinet to operateeffectively?

• Should the public have access to Cabinetdocuments, and how can it be known that

such information is complete and accurate?

• Should formal minutes be required and, ifso, what should they contain?

• Should legal sanctions apply to a breach ofan obligation to keep records?

• Should public servants be charged with theresponsibility of taking formal notes?

REFERENCES

Jaensch, Dean (1992) The Politics of Australia,South Melbourne: MacMillan Education Australia

New South Wales, Independent CommissionAgainst Corruption (1992) Report on theUnauthorised Release of Government InformationVolume 1, Sydney

Public Service Commission of Western Australia(1988) Rights, Responsibilities and Obligations: ACode of Conduct for Public Servants

Public Service Commission of Western Australia(1989) Public Service Staff Manual

Queensland, Commission of Inquiry into PossibleIllegal Activities and Associated Police Misconduct(Fitzgerald) (1989) Report Government Printer

Western Australia, Commission on Accountability(Burt) (1989) Report to the Premier

Western Australia, Ministry of Premier and Cabinet(1994) Cabinet Handbook

Western Australia, Office of the InformationCommissioner (1994) Freedom of InformationAnnual Report 1993-1994

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportPart I (Volumes 1-6); Part II, Perth: GovernmentPrinter

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LEGISLATION

Constitution Act 1889

Employment Services Consequential AmendmentsAct 1994 (Commonwealth)

Equal Opportunity Act 1984

Financial Administration and Audit Act 1985

Fish Resources Management Act 1994

Freedom of Information Act 1982 (Commonwealth)

Freedom of Information Act 1992

Legal Aid Commission Act 1976

Official Corruption Commission Act 1988

Parliamentary Commissioner Act 1971

Prime Minister and Cabinet (MiscellaneousProvisions) Act 1994 (Commonwealth)

Privacy Act 1988 (Commonwealth)

Public Sector Management Act 1994

Public Service Act 1978

Public Service Regulations 1988

The Administrative Decisions (Judicial Review)Act 1977 (Commonwealth)

The Criminal Code Act 1913

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APPENDIX 1

LIST OF STATUTORY SECRECYPROVISIONS AND MINISTERSRESPONSIBLE AS AT JANUARY 1995

Hon R F Court, B.Com, MLAPREMIER

s6 Royal Commission (Custody ofRecords) Act 1992

s6A Official Corruption Commission Act1988

ss11, 11B Official Corruption Commission Act1988

ss8, 9, 23 Parliamentary Commissioner Act 1971s41 R&I Bank Act 1990s74 Gold Corporation Act 1987s58C Financial Administration and Audit Act

1985s91 Financial Administration and Audit Act

1985Reg 8 Public Service Regulations 1988s22 Western Australian Tourism

Commission Act 1983s17 Statistics Act 1907

Hon H J Cowan MLADEPUTY PREMIER

s16 Inventions Act 1975s30 Regional Development Commissions

Act 1993s20 Technology and Industry Development

Act 1983s12 Western Australian Products Symbol

Act 1972s32 Perth International Centre for

Application of Solar Energy Act 1994s18 Small Business Development

Corporation Act 1983

Hon C J Barnett, M.Ec, MLAMINISTER FOR RESOURCESDEVELOPMENT; ENERGY

s10 Nuclear Activities Regulation Act 1978ss72,73 State Energy Commission Act 1979

Hon M G House, JP, MLAMINISTER FOR PRIMARY INDUSTRY;FISHERIES

s36 Biological Control Act 1986s20 Chicken Meat Industry Act 1977s19 Fisheries Act 1905s62 Pearling Act 1990

Hon S G E Cash MLCMINISTER FOR MINES; LANDS

s14 Coal Mines Regulations Act 1946s69 Coal Mines Regulations Act 1946s14 Mines Regulations Act 1946s35 andSchedules 1(5) and 2(9)Minerals and Energy Research Act

1987 [Note: The Schedules save theapplication of s32 of the Solar EnergyResearch Act 1977 (repealed) and s32of the Mining and Petroleum ResearchAct 1981 (repealed)]

Hon E J Charlton MLCMINISTER FOR TRANSPORT

s47J Transport Co-ordination Act 1966ss7C,42F Transport Co-ordination Act 1966Reg 37 Albany Harbour Board (Debentures and

Inscribed Stock) Regulations 1965Reg 37 Bunbury Harbour Board (Debentures

and Inscribed Stock) Regulations 1964Reg 37 Esperance Port Authority (Debentures

and Inscribed Stock) Regulations 1969Reg 37 Fremantle Harbour Trust (Debentures

and Inscribed Stock) Regulations 1962Reg 36 Metropolitan (Perth) Passenger

Transport Trust Debentures andInscribed Stock Regulations 1958

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s13 Casino Control Act 1984 [Which refersto s20 of the Gaming Commission

Act 1987]s20 Gaming Commission Act 1987s152 Liquor Licensing Act 1988s13 Valuation of Land Act 1978s36 Western Australian Exim Corporation

Act 1986

Hon P D Omodei MLAMINISTER FOR WATER RESOURCES;LOCAL GOVERNMENT

s20 Water Authority Act 1984

Hon P G Foss, BA, LL.B, MLCMINISTER FOR HEALTH; THE ARTS; FAIRTRADING

s314 Health Act 1911s49 Radiation Safety Act 1975s32 Library Board of Western Australia Act

1951ss82, 138 Real Estate and Business Agents Act

1978s24 Consumer Affairs Act 1971s32 Retail Trading Hours Act 1987s56 Credit (Administration) Act 1984s116 Settlement Agents Act 1981s63 Settlement Agents Act 1981s52 Travel Agents Act 1985s48 Employment Agents Act 1976ss62,88 Finance Brokers Control Act 1975s33 Land Valuers Licensing Act 1978ss39, 46,48, 49 Human Reproduction Technology Act

1991Schedule(23) Travel Agents Regulations 1986s33 Petroleum Products Pricing Act 1983

[Formerly cited as the Prevention ofExcessive Prices Act 1983]

Hon K J Minson, B.DSc, MLAMINISTER FOR THE ENVIRONMENT;DISABILITY SERVICES

s33 Disability Services Act 1993

Hon N F Moore, BA, Dip.Ed, MLCMINISTER FOR EDUCATION;EMPLOYMENT AND TRAINING;SPORT AND RECREATION

s40 Education Service Providers (Full FeeOverseas Students) Registration Act

1991s32 Secondary Education Authority Act

1984

Hon C L Edwardes, B.Juris, LL.B, MLAATTORNEY GENERAL

s113 Guardianship and Administration Act1990

s34 Juries Act 1957s13 Securities Industry Act 1975s47 Public Trustee Act 1941s167 Equal Opportunity Act 1984 (Part X)s64 Legal Aid Commission Act 1976s51 Offenders Community Corrections Act

1963s29 Financial Istitutions (Western Australia)

Act 1992ss.61,74,82,90,92,94,andSchedule Freedom of Information Act 1992

Hon G M Evans, MBE, FCA, MLCMINISTER FOR FINANCE; RACING ANDGAMING

s8B Government Employees SuperannuationAct 1987

s42 State Government InsuranceCommission Act 1986

s5 Business Franchise (Tobacco) Act 1975s7 Death Duty Assessment Act 1973s35 Debits Tax Assessment Act 1990s8 Financial Institutions Duty Act 1983s11 Land Tax Assessment Act 1976s9 Stamp Act 1921s19 Western Australian Development

Corporation Act 1983

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s120 Environmental Protection Act 1986s66 Waterways Conservation Act 1976

Hon R K Nicholls MLAMINISTER FOR COMMUNITYDEVELOPMENT; THE FAMILY; SENIORS

ss124, 127 Adoption Act 1994s126A Child Welfare Act 1947s32 Welfare and Assistance Act 1961

Hon G D Kierath MLAMINISTER FOR LABOUR RELATIONS;WORKS, SERVICES;MULTICULTURAL AND ETHNIC AFFAIRS

s11 Industrial Relations Act 1979s57D Workers Compensation and

Rehabilitation Act 1981s39 Workplace Agreements Act 1993s18A Factories and Shops Act 1963

Hon R L Wiese MLAMINISTER FOR POLICE; EMERGENCYSERVICES

s42 Fire Brigades Act 1942s21A Fire Brigades Superannuation Act 1985s31 National Crime Authority (State

Provisions) Act 1985Reg 607 Police Force Regulations 1979s36 Security Agents Act 1976

Hon K R Lewis MLAMINISTER FOR PLANNING; HERITAGENone

Hon A K R Prince, LL B, MLAMINISTER FOR ABORIGINAL AFFAIRS;HOUSING

s56 Aboriginal Heritage Act 1972

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COMMISSION ON GOVERNMENT

DISCUSSION PAPER NO. 2

SPECIFIED MATTER :

NO. 3 FINANCIAL ADMINISTRATION &AUDIT ACT

NO. 6 POWERS OF THE AUDITORGENERAL

6th Floor, May Holman Centre 32 St George’s Terrace Perth WA 6000

Telephone : (09)222 0544 Facsimile : (09)2220522ˇGENERAL PREFACE TO EACHDISCUSSION PAPER

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Parliament and the Auditor General with access toall information held by, or relating to undertakingsor commitments of, organisations in the publicsector and to review the legislation governing thefunctions of the Auditor General to obtain relevantinformation.

This paper identifies some of the issues which maybe relevant to the Commission’s tasks and providesinformation and background on those issues. Theissues identified and information provided are notintended to be an exhaustive list and submissionsmay address any other relevant issues.

The Commission invites people andorganisations to make written submissions on theissues set out in this Discussion Paper. Thosepreparing submissions should feel free to includeany other issues they consider relevant, whetheror not they are mentioned in this paper.

SUBMISSIONS

The following are guidelines designed to assistmembers of the public wishing to make asubmission to the Commission on Government.

FORMAT

Please ensure, as far as possible, that submissions:(a) are legible, and preferably machine-typed with

single line spacing;(b) use headings and sub-headings;(c) have numbered pages;(d) clearly identify the author by showing name,

address and telephone number; and(e) are bound together with a staple or secured with

a paper clip and are on A4 standard sizedpaper;

ORare submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a.(This is especially important for lengthysubmissions.)

CONTENT

Your submission should be divided into thefollowing principal parts:

PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if and tothe extent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of Parliament.The Commission may also inquire into othermatters it considers relevant to the prevention ofcorrupt, illegal or improper conduct in the publicsector.

The Specified Matters, which are set out in theFirst Schedule of the Commission on GovernmentAct 1994, provide the initial focus of theCommission’s inquiries. The relevant issues,however, cannot be addressed in a vacuum. TheCommission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This applies alsoto any matters which may become part of theCommission’s inquiries. We have concluded that itis necessary to address the context in which theSpecified Matters have arisen, the historical,contemporary and topical circumstances and eventswhich surround them and their relevance for thefuture.

The Discussion Papers which the Commission hasprepared and will prepare in respect of theSpecified Matters and the other matters into whichit may inquire are intended to canvass some of theissues which may arise within this broader picture.The papers are designed to encourage debate andwritten submissions upon a wide range of issueswhich might be relevant to the Commission’s tasks.

Discussion Paper No. 2

This paper deals with Specified Matters 3 and 6,concerning the operation and adequacy of theFinancial Administration and Audit Act 1985 withregard to the accessibility of information held bypublic sector organisations and the powers of theAuditor General to obtain relevant information.Proper accountability is dependant uponaccessibility to information. The initial tasks of theCommission are to examine the operation andadequacy of the Financial Administration andAudit Act with regard to providing Ministers, the

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1 INTRODUCTION

Increased accountability has become a dominanttheme in contemporary government and publicadministration. Voters and their representatives inparliament are calling for greater knowledge about,and assessment of, the performance of the executiveand associated government agencies.

Traditional instruments to obtain information haveincluded the requirement to submit revenue andexpenditure plans for the approval of theparliament, usually in the form of an annual budget.As a check on the executive’s use of revenueprovided by the parliament, and as a check on thefinancial activities of agencies for which there is nobudget appropriation, there has been the generalrequirement for all government agencies to makeannual reports to the parliament with the financialoperations subject to an audit by the AuditorGeneral who is an official of the parliament ratherthan the executive.

The presentation of annual reports to the WesternAustralian Parliament is guided by a statute settingout the reporting requirements as well as the powersand responsibilities of the Auditor General. Inrecent times the scope of the functions carried outby the Auditor General have been widened from theoriginal concept of a financial audit to anassessment of the efficiency and effectiveness ofgovernment operations. These new functions,together with the demands of Parliament, and theMinisters responsible to the Parliament, haveopened up new requirements for information aboutthe operations of government.

This Discussion Paper raises important issuesassociated with the adequacy of the WesternAustralian Financial Administration and Audit Act1985 (FAAA) in ensuring that Ministers, theParliament, and the Auditor General all have accessto information of and about government, necessaryfor the discharge of their duties in the context ofopen and accountable government.

Specified Matter 3 of the Commission OnGovernment Act 1994 requires the Commission onGovernment to inquire into:

1. SUMMARY - this should be a very briefoutline of the specific matter you areaddressing, your concerns and what you areproposing. Clearly state which SpecifiedMatter you are addressing.

2. SUBMISSION/ARGUMENT - in this sectionyou can expand on your concerns about theissues that you are addressing, outlining howyou will back this up with factual material andargument which support your views.

3. SUPPORTING MATERIAL - here youpresent any material, item by item, referring tohow each item supports your argument. Thismay take the form of examples of actual events,copies of documents, or any other evidencerelevant to your submission.

4. RECOMMENDATIONS - you need to clearlypresent your recommendations addressing theconcerns identified by your submission. Theyshould be listed in order of importance andnumbered.

Please send your submission to:The ChairpersonCommission on Government6th Floor, May Holman Centre32 St George's TerracePerth WA 6000Fax: (09) 222 0522Phone: (09) 222 0544

Please telephone Elizabeth Gauci on(09) 222 0554 for further information, discussionpapers, seminar dates and due dates forsubmissions.

1 INTRODUCTION



4 SUMMARY

CONTENTS


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the operation and adequacy of the FinancialAdministration & Audit Act 1985 (particularlysection 58C) with regard to providing Ministers,the Parliament and the Auditor General withaccess to all information held by, or relating toundertakings or commitments of, organisations inthe public sector.

Section 58C of the FAAA states that:

The Minister and the accountable officer of everydepartment and the Minister and accountableauthority of every statutory authority, shall ensurethat -

(a) no action is taken or omitted to betaken; and

(b) no contractual or other obligation isentered into,

by or on behalf of the Minister, department orstatutory authority that would prevent or inhibitthe provision by the Minister to the Parliament ofinformation concerning any conduct or operationof the department or statutory authority in such amanner and to such an extent as the Ministerthinks reasonable and appropriate.

This section, in effect, permits a Minister towithhold information from Parliament at theMinister’s unfettered discretion. The existence ofthat discretion may not be consistent with theconcept of open and accountable government.

Specified Matter 6 of the Commission onGovernment Act 1994 requires the Commission toinquire into:

the legislation governing the functions of theAuditor General with regard to the obligations ofpersons to answer any question put by the AuditorGeneral and to produce any relevant documents,notwithstanding that the answer or the informationmay result in or tend towards self-incrimination.

While the matters referred to the Commission relateto specific aspects of the role of the AuditorGeneral, this public office is part of a wider systemto ensure that the public, through the Parliament, iskept informed about the operation of governmentand the expenditure of public funds. In this respect,

the Auditor General augments such othercomponents of the political process as a vigilantopposition and a free press in providing theinformation that is vital for citizens to makeinformed choices about public policy.

The Auditor General has a variety of functions,some relating to the role of checking the details ofgovernment expenditure, and some relating to theassessment of how effectively public funds arebeing used. This latter role can be both complexand controversial, since the line between theassessment of the effectiveness of publicexpenditure, and commenting on the desirabilityof government policy, is a fine one.

The issues to be examined in this Discussion Paperare:

Issue 1

Access by the Parliament, Ministers and theAuditor General to information for accountabilitypurposes:

• current means and powers of access toinformation;

• confidentiality; and• undertakings and commitments given by

government.

Issue 2

The provision of independent information toParliament:

• the concept of independence;• independence and audit reporting; and• enhancing the independence of the Auditor

General.

Issue 3

Balancing the power of the Auditor General toobtain information with the rights of individualsand organisations:

• current powers of access of the AuditorGeneral;

• the privilege against self-incrimination;• legal professional privilege; and

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• access to Cabinet documents.

Issue 4

The scope of the Auditor General’s role inproviding adequate information to Parliament:

• the Auditor General’s mandate;• the changing role of the Auditor General;• examination, investigation, inquiry and

audit; and• accountability of the Auditor General.


Financial Administration and Audit Act 1985(FAAA)

The FAAA was enacted to improve the financialaccountability of Western Australian governmentagencies. The FAAA makes provision for theadministration and audit of the public finances ofthe State. In addition, reporting requirements arespecified and the office and functions of the AuditorGeneral described. The Treasurer is responsible forthe administration of the FAAA.

Under the FAAA, Ministers are ultimatelyaccountable to the Parliament for the financialtransactions of their departments and authorities.The FAAA incorporates the concepts of chiefexecutive officers of departments being accountableofficers and boards of management of statutoryauthorities being accountable authorities. Bothaccountable officers and authorities are responsibleto their Ministers for the financial administration ofthe bodies under their control.

Accountable officers and authorities are required toreport annually on the discharge of theirresponsibilities and to do so in a timely manner.Annual reports are required to meet standardsin regard to financial statements and operationalreporting, as well as to contain key effectivenessand efficiency performance indicators.

Annual reports must be submitted to Ministerswithin two months of the end of the financial year.Ministers are required to table these reports in

Parliament within twenty one days of receiving theAuditor General’s audit opinion on the financialstatements and performance indicators contained inthe annual report.

The FAAA provides for the appointment and tenureof the Auditor General. It also outlines the powersand duties of the Auditor General. The FAAA wasone of the first of its type in Australia to refer to theexamination of the 'efficiency and effectiveness' ofgovernment agencies. It was seen as a significantadvance at the time. The powers andresponsibilities of the Auditor General wereenhanced when the FAAA was amended in 1989 and1991. The Western Australian Royal Commissioninto Commercial Activities of Government andOther Matters (WA Royal Commission 1992) notedthat:

The reforms introduced by the [FAAA] haveimproved materially the information supplied toParliament by way of annual reports from publicservice departments and statutory authorities. (WARoyal Commission 1992: II 2.4.8)

and stated that the Office of the Auditor General:

provides a critical link in the accountability chainbetween the public sector and the Parliament andthe community. It alone subjects the practicalconduct and operations of the public sector as awhole to regular independent investigation. (WARoyal Commission 1992: II 3.10.1)

In Western Australia the Office of the AuditorGeneral has stated its role as being to provideParliament with:

timely relevant quality information necessary toenhance public sector accountability andperformance. (Office of the Auditor General,1994: 5)

The Royal Commission stated that more needed tobe done if the public was to obtain the benefit andprotection that the Auditor General was capable ofproviding. Consequently, a number ofrecommendations were made to strengthen theOffice of the Auditor General.

In the past the emphasis was on verifying the

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financial accounts. More recently, 'performanceauditing', which is an examination of theeffectiveness and efficiency of an organisation, hasbecome a significant part of the Auditor General’smandate.


Issue 1

Access by the Parliament, Ministers and theAuditor General to information for accountibilitypurposes (Specified Matter 3).

Current means and powers of access toinformation

Annual reporting is one of the most importantmechanisms for holding departments and statutorybodies accountable. Through annual reportsinformation on a wide range of activities thatinvolve the expenditure of public money is madeavailable to Ministers, the Parliament and thepublic. The parliamentary committee system inprinciple gives parliamentarians the opportunity todelve more deeply into the activities of governmentagencies. The Public Accounts and ExpenditureReview Committee (PAERC) of the LegislativeAssembly and the Estimates and OperationsCommittee and the Standing Committee onGovernment Agencies of the Legislative Councilare perhaps the committees most active in thisrespect. The Auditor General also provides a checkon the financial activities of government agencies.

The FAAA requires accountable officers andauthorities to submit an annual report to theresponsible Minister. That report must containfinancial statements, performance indicators, anoperational report and any other informationrequired by the Minister. The Minister is requiredto table each annual report before Parliament. TheTreasurer may require any accountable officer,accountable authority or other officer to provideinformation for the purpose of the FAAA. Section58C of the FAAA obliges Ministers, accountableofficers and accountable authorities to ensure thatthe provision of information by Ministers toParliament is not prevented or inhibited. That

obligation need only be observed to the extentconsidered to be reasonable and appropriate by theMinister.

Confidentiality

During the course of its investigations, the RoyalCommission found that commercial confidentialityhad been used to justify concealing informationfrom the public, despite vital public interest in theinformation.

The Royal Commission acknowledged thatcommercial secrecy has a 'proper place in theconduct of government'. It also recognised thatadequate accountability measures needed to beimposed to prevent the abuse of those secrecyclaims without destroying the secrecy ofinformation in legitimate cases (WA RoyalCommission 1992: II 2.5.21).

The Royal Commission recommended that section58C of the FAAA be amended to oblige a Ministerto inform Parliament and the Auditor General ofany action taken by a government agency whichwould prevent information concerning the operationof an agency being provided to the Parliament.Additionally, it was recommended that the AuditorGeneral be entitled to access information consideredto be confidential to the extent that the informationis or could be relevant to his/her auditresponsibilities.

Implementation of the Royal Commission’srecommendation would enable the Auditor Generalto operate without being constrained by limitedaccess to information considered to be relevant.However, a workable balance between the need tokeep certain information secret in the interests ofthe public and the right of the public to be keptinformed needs to be established.

The Federal Government is seeking to address theseconcerns in the Auditor-General Bill 1994.Information assessed as being of such a sensitivenature that it is in the public interest for it toremain secret must not be included in the reports ofthe Auditor General for the Commonwealth to theParliament. Where the preservation of secrecy isconsidered to be in the public interest, the AuditorGeneral may prepare a report containing that

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information and this report must be given to thePrime Minister, Finance Minister and relevantMinister or Ministers.

Undertakings and commitments given bygovernment

By giving guarantees, indemnities and sureties thegovernment enters into contingent obligations whichhave not been shown in the budget nor approved byParliament. In the course of events thesecontingent liabilities may become actual liabilitieswith significant effects on the State’s financialposition. The appropriation of funds to meet suchan obligation requires the approval of both Housesof Parliament. While it is possible that the fundsmight not be appropriated, it is unlikely that theParliament would break an undertaking given bythe Government. In effect, the Parliament iscommitted to appropriating the funds needed tomeet a contingent liability incurred by theGovernment.

The Royal Commission recommended that:

• Treasury be informed by all agencies assoon as possible after a guarantee orindemnity is given;

• the Treasurer should be responsible for thegiving of all guarantees, indemnities andsureties which are not, by law, vested inanother public official;

• guarantees, indemnities and sureties inrespect of significant matters should requireCabinet approval; and

• the official responsible for giving aguarantee or indemnity should notify theParliament and the Auditor General of itsnature, full extent and purpose as soon aspossible after it has been given. (WA RoyalCommission 1992: II 2.6.8)

Treasurer’s Instruction 821 'Register of Guaranteesand Indemnities' was issued in November 1994.This requires each accountable officer or authorityto record, in a register, the details of any statutoryguarantee, statutory indemnity or surety issued or

given. Treasury will maintain a central register ofthis information.

Section 58C of the FAAA cuts across theParliament’s access to information and may preventthe Auditor General from providing the Parliamentwith valid and reliable information. The RoyalCommission described section 58C of the FAAA as'most disturbing' (WA Royal Commission 1992: II2.5.17) given the discretion that Ministers have notto disclose information.

The Royal Commission recommended that section58C should be amended so that:

(a) the minister is obliged to notify both theParliament and the Auditor General in writingof any action that has been taken or obligationincurred to which section 58C is relevant, andthat the reasons why it is reasonable andappropriate that the provision of informationto Parliament is to be prevented or inhibited tothe extent that this is the case; and

(b) notwithstanding any secrecy undertaking orclaim, the Auditor General is entitled, as ofright, to access to that information to theextent that, in the opinion of the AuditorGeneral, it is or could be relevant to thedischarge of his or her audit responsibilities.(WA Royal Commission 1992: II 2.5.20)

Providing Parliament with detailed informationregarding government undertakings andcommitments may be cumbersome and couldjeopardise projects of major significance for theState. If the proposed amendments were introducedthe Parliament would be advised when and whyconfidentiality were to prevail but not the detailsof any undertakings or commitments given.Proposed amendment (b) would entitle the AuditorGeneral to have access to this information for thedischarge of audit responsibilities. Arguably, if theAuditor General’s independence is assured,Parliamentarians may be confident of the probity ofGovernment undertakings and commitments.

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Issue 2

The provision of independent information toParliament.

The concept of independence

Information provided by participants in the publicsector may be self-serving. Alternative andindependent sources of information must beavailable.

Information is provided to Ministers and Parliamentby chief executive officers, statutory officials,parliamentary committees, the opposition, themedia and the public. Parliamentarians have theopportunity to seek further information from theGovernment through parliamentary debates andquestion time, drawing public attention to issuesconsidered important.

The bulk of information regarding the business andfinances of government, however, is provided toMinisters and the Parliament by governmentagencies through their annual reports. In the viewof PAERC, annual reports tend to be somewhat'subjective' (PAERC 1992: 3) because they areprepared by the agencies themselves. The AuditorGeneral’s role is to provide independent assurancethat information in annual reports is valid andreliable.

Independence and audit reporting

Independence is the cornerstone of auditing. Anyaudit opinion issued as a result of a reviewwhere the independence of the auditor is open toquestion will not engender the confidence ofits users and will generally lack credibility.

The PAERC report on the independence of theAuditor General stated:

a closer relationship between the Auditor Generaland the Parliament will remove any potentialinfluence by the Executive government over theaudit of public accounts and preserve an impartialapproach by Auditors General to auditresponsibilities. (PAERC 1992: 4)

The Australian Society of Certified PractisingAccountants (ASCPA)(1994) and the JointCommittee of Public Accounts (JCPA) (1989)concluded that a strong, independent audit officeis essential for the accountability of governmentagencies and officials to Parliament and thepublic.

The Auditor General is appointed by the Governoron the recommendation of the Premier(FAAA s.71). The Salaries and AllowancesTribunal determines the salary and conditions ofemployment (FAAA s.72). The Auditor General ofWestern Australia is appointed until the age of 65(FAAA s.74) and can only be removed from officeby the Governor after a resolution to do so has beenpassed by both Houses of Parliament. In certaincircumstances the Auditor General may besuspended for a short period (FAAA s.75).

Under the FAAA, the Auditor General is required toperform audits in such a manner as he/she thinksfit, provided that an opinion is given on eachagency at least annually (s.78) and that audits areconducted in accordance with auditing standardsand practices (s.79). The Auditor General hasaccess to the accounts and other documents held byany government officer (FAAA ss.83,85).

Section 71(2) of the FAAA establishes the Office ofthe Auditor General as a public service departmentwith the Auditor General as the Chief ExecutiveOfficer. As a department of the public service, theorganisational structure, staffing levels andrecruitment of staff to the Office are governed bypublic service procedures. The Office of theAuditor General’s budget is presented to Treasuryfor review prior to being included in the State’sbudget. The Auditor General is empowered to, anddoes, contract other suitably qualified auditors tocarry out audit functions on his/her behalf. Whereaudit work has been conducted by contractors, theAuditor General retains responsibility for issuingthe audit opinion.

Enhancing the independence of the AuditorGeneral

The Auditor General is appointed under statute andreports directly to the Parliament. Although

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undertaking duties conferred by an Act ofParliament, the Auditor General is not subject todirection by either the Parliament or theGovernment. The Treasurer may require theAuditor General to audit certain accounts. Theaudit and reporting powers conferred on theAuditor General by statute strengthen theindependent nature of the role.

It has been widely argued that a more directrelationship between the Auditor General and theParliament would remove any potential for theGovernment to exert influence over the audit ofpublic agencies. This would ensure thepreservation of the Auditor General’s impartiality.

The Office of the Auditor General’s resources areprovided in exactly the same way as otherpublic sector agencies. PAERC said:

we are not convinced that resourcing through thenormal Budget process provides the AuditorGeneral with sufficient flexibility and discretionwith regard to the Office’s organisationalstructure, accommodation, information technology,budgetary and expenditure controls, audit fees andfinancial autonomy. (PAERC 1992: 16)

The Australian Society of Certified PractisingAccountants, the Auditor General’s PolicyAdvisory Committee and PAERC recommendedthat a parliamentary committee determine thebudget for the Office of the Auditor General. Thethen Premier, Dr Carmen Lawrence did not supportthis recommendation and stated that:

it cuts across the basic Westminster model andappears to ignore the checks and balances alreadybuilt into the system. The Auditor General has thepower to report to Parliament on any matter,including the inadequacy of the resourcesallocated to audit. (PAERC, 1992: 16)

The function performed by the Auditor General isprimarily a service to the Parliament not theGovernment. Watchdogs dependent upon theGovernment for their resources are potentiallysubject to the influence of the executive.

Enabling legislation for the audit function varies.Victoria has a separate audit act. A Bill for aseparate audit act is before the Northern TerritoryLegislature. There is currently three Billsseparating the provisions governing audit, financialadministration, and Commonwealth authorities andcompanies before the Federal Parliament. Separateaudit acts are in place for both Federal andProvincial Governments in Canada.

Under present arrangements, ministerialresponsibility for the FAAA rests with the Treasureras the Minister responsible for the TreasuryDepartment. Amendments to audit provisions arethe responsibility of the Treasury Department.

The present arrangements may not adequately allowfor the financial and operational independence toassure that the Auditor General effectively andefficiently discharges the independent auditing andreporting responsibilities to the Parliament. Thesearrangements may also confuse responsibility forfinancial management (which currently rests withthe Treasury Department and individual agencies)and audit.

A separate audit act, administered by the AuditorGeneral, who is answerable directly to Parliament,could reinforce and demonstrate the primaryrelationship and accountability of the AuditorGeneral to Parliament. It could also placeresponsibility for the administration of auditlegislation (including legislative changes) with theAuditor General and enhance the effectiveness offinancial management by clearly defining thatdesignated central agencies and individual agenciesare responsible for financial management.

Issue 3

Balancing the power of the Auditor General toobtain information with the rights of individualsand organisations (Specified Matter 6).

Current powers of access of the Auditor General

To form an independent opinion on either thefinancial statements, performance indicators,internal controls or general performance ofgovernment agencies, the Auditor General requires

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access to information held or used by thoseagencies. The Auditor General of New SouthWales was quoted as saying that:

the legal right to access documents relevant toaudit is so basic to the audit task that lack ofaccess represents a real impediment to [theAuditor General’s acquittal of] the responsibilitiesthat ... Parliament expect[s]. (Financial Review,20 December 1994)

The powers of the Auditor General to accessinformation are set out in ss.83 to 87 of theFAAA. For the purpose of carrying out an auditthese powers allow the Auditor General full andfree access to:

• all accounts and other information,documents and records which the AuditorGeneral considers necessary for thepurposes of this Act;

• public moneys, other moneys or moneys ofa statutory authority; and

• public property or other property.

The Auditor General may:

• require banks and other financialinstitutions to provide statements,certificates and information regarding anyaccount in which public moneys or othermoneys or moneys of a statutory authorityhave been deposited;

• require officers to provide such informationor explanation as the Auditor Generalconsiders necessary for the purposes of anyaudit;

• require persons to appear before theAuditor General to answer questions and toproduce accounts, records, books, vouchers,documents and papers in the possession orcontrol of that person for the purposes of anaudit;

• search and take extracts from any book,document, system or record in thecustody of the Treasurer or any governmentagency; and

• examine on oath or affirmation all personsthe Auditor General thinks fit in respect ofthe due performance and exercise of theduties and powers vested in the AuditorGeneral.

The Auditor General can exercise the powers toaccess information where it is held by publicsector employees. However, it is unclear whether insimilar circumstances the Auditor General isentitled to compel private individuals andorganisations to provide information. Given publicsector corporatisation and outsourcing, there is aview that the powers of the Auditor General toaccess information should not be limited toinformation that is held by the public sector.

The Royal Commission was of the view that theAuditor General should be entitled to access allrelevant information. Nevertheless, any power ofthe Auditor General to intrude upon the lives ofprivate citizens has the potential to impinge upontheir rights. Accordingly, the circumstances inwhich the Auditor General has access toinformation held by private citizens may need to belimited to functions defined in legislation.

The Privilege Against Self-Incrimination

The Royal Commission recommended that thelegislation governing the functions of theAuditor General provide that a person be requiredto answer any questions put by the AuditorGeneral, and to produce any documents to theAuditor General, even if that may tend toincriminate that person. The Royal Commissionrecommended that evidence given to theAuditor General should not be available for useagainst that person in any proceedings otherthan the investigation or hearing before the AuditorGeneral or in respect of a prosecution underthe FAAA.

Under common law no person is obliged to answerany question or produce any document under aprocess of law, if the answer to the question, or thecontents of the document, tends to expose thatperson to criminal punishment or penalty. This isknown as the privilege against self-incrimination.

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The privilege may obstruct the course of justice,and reduce the chances of discovering crimes. Inthe context of a person accused of a crime, theprivilege has been considered to be a fundamentalcommon law right.

In Western Australia a judge may grant acertificate, under the Evidence Act 1906, preventinguse of the evidence given by the witness againsthim/her in any criminal proceedings.

It is now common for Australian legislation toreduce, amend or even eliminate the benefits of theprivilege against self-incrimination. That is usuallyachieved by the legislation stating:

• that the privilege will not be available andthat the statements and informationobtained may be used in evidence againstthe person questioned;

• that the privilege will not be available butthe legislation is silent on the use to whichthat information may be put; or

• that the privilege will not apply but thenprovides the witness with protection fromsome of the consequences of giving thatinformation.

The privilege against self-incrimination is notlimited to formal court proceedings. It may alsobe available in situations where information isgathered by a lawful authority, for example, atribunal. Allowing persons the benefits of theprivilege against self-incrimination may restrictthe ability of the Auditor General to gatherinformation.

Legal professional privilege

The Royal Commission recommended that thelegislation governing the functions of the AuditorGeneral provide that neither the Government norany public sector agency be entitled to maintain aclaim of legal professional privilege against theAuditor General.By virtue of legal professional privilege,confidential communications and other materialspassing between a person and their legal advisersare entitled to remain confidential. Legal

professional privilege is available when informationis made or brought into existence for the solepurpose of seeking or obtaining legal advice by apractising lawyer or for the sole purpose ofpreparing for existing or contemplated court action.

Legal professional privilege restricts access tomaterials during court proceedings and extends todeny access to all lawful gatherers of informationoutside court. The Royal Commission drew adistinction between situations where legalprofessional privilege was being claimed byprivate individuals or bodies (which it consideredwas justified) and where the privilege was beingclaimed by the government, or public sector bodiesand officers of the public sector. The right to claimlegal professional privilege is rarely eliminated orreduced by statute. Indeed it is expressly retainedby the provisions of the recently amended PublicFinance and Audit Act 1983 (NSW), the legislationgoverning the functions of the Auditor General inNew South Wales.

Access to Cabinet documents

The FAAA does not expressly allow or disallow theAuditor General access to Cabinet decisions andsubmissions.

It has been argued that Cabinet confidentiality isnecessary in the public interest, to ensure thatCabinet discussions are candid and frank and touphold the convention of collective responsibility ofMinisters. This holds Ministers collectivelyresponsible to Parliament for the decisions ofCabinet and requires Ministers to publicly agreewith those decisions. It is said that confidentialityof Cabinet processes ensures that the Ministers arenot subjected to premature ill-informed criticism.(The issue of Cabinet secrecy is covered in theCommission on Government Discussion PaperNo. 1).

These principles have recently been stronglyendorsed by the High Court in The Commonwealthv Northern Land Council (1993) 112 ALR 409.Further, documents that would reveal thedeliberations or decisions of Cabinet are generallynot accessible under freedom of informationlegislation.

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Cabinet documents and information may bepolitically sensitive but may also contain financialand economic information relevant to the AuditorGeneral’s role. It may be necessary to guaranteethe Auditor General’s access to those documentsand information to ensure that the government isfully accountable to the Parliament and thatunscrupulous public officials do not hide documentsand information under a cloak of Cabinet secrecy.Given the status of Auditors General, and the factthat they routinely audit sensitive material, accessto Cabinet documents, when necessary, may bejustified.

The Auditor-General Bill 1994 (Cwlth), which isintended to replace the Audit Act 1901 (Cwlth),does not expressly allow or deny the AuditorGeneral for the Commonwealth access to Cabinetdocuments. However it does provide that theAuditor General for the Commonwealth must notreport 'sensitive information' to the FederalParliament. The phrase 'sensitive information'includes information that would involve thedisclosure of deliberations or decisions of theCabinet or of a committee of the Cabinet. TheCommonwealth Auditor General may prepare areport containing sensitive information. That reportmust then be given to the Prime Minister, theFinance Minister and the responsible Minister orMinisters.

The Western Australian Auditor General’s PolicyAdvisory Committee noted that the generalauditing standards of the International Organisationof Supreme Audit Institutions provide that:

by legal provision or convention, the executiveshould permit reasonable access by the AuditorGeneral to sensitive information which isnecessary and relevant to the discharge of theAuditor General’s responsibilities. (AuditorGeneral’s Policy Advisory Committee, 1990: 19)

Under s.332 of the Corporations Law auditors ofprivate sector companies have a statutory right ofaccess to the records of those companies. TheStatement of Auditing Standards AUS 1 (issued bythe Institute of Chartered Accountants in Australiaand the ASCPA) states that auditors must express aqualified opinion where their ability to express anopinion on financial information is impaired by

constraints on the scope of the audit.

Issue 4

The scope of the Auditor General's role in providingadequate information to Parliament.

Inquiries into the provision and receipt ofinformation give rise to a number of relatedquestions including the range and types ofinformation which ought to be provided, the mannerin which the information is presented, the validityof the information, the expertise of the personspresenting it and the accountability of thosepersons.

The Auditor General’s mandate

Under the FAAA, the accounts of the Treasurer andthose of all statutory authorities and governmentdepartments are subject to an annual audit by theAuditor General. In addition, if requested to do soby the Treasurer, the Auditor General is required toaudit the accounts of any person in receipt of aspecific purpose grant or advance. Subsidiarycompanies owned by statutory authorities have alsobeen subject to review by the Auditor General since1989.

Government agencies must demonstrate greateraccountability than their private sector counterpartsbecause shareholders in private companiesvoluntarily contribute funds, whereas public fundsare compulsorily acquired through the taxationsystem. Not only is the Auditor General required toform an opinion on each government agency’sfinancial statements, he/she must also assess theadequacy of the agency’s internal controls, assessthe extent to which legislative requirements havebeen met and provide an opinion on the relevanceand appropriateness of the agency’s performanceindicators.

Auditors General throughout Australia have beengiven the power to conduct performanceexaminations which assess the extent to whichpolicy initiatives have been implemented in anefficient and effective manner. Performanceexaminations are intended to act as a check onwaste, mismanagement and the possible subversion

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of government policies and can help agenciesimprove their performance.

As the performance examination role of AuditorsGeneral has increased, concerns about theappropriateness of the role and the expertise ofperformance audit staff to conduct suchexaminations have been raised. For example,reports by the Federal Auditor General on sportsgrants and national debt led to criticism of both therole of the Auditor General and the quality of thereports involved. Similarly, a report of the AuditorGeneral on child care in Western Australia (1994)was criticised for a lack of insight regarding thecomplexities of the industry. Some corporatisedgovernment agencies, whose priority is the 'bottomline', regard current performance examinationrequirements as inappropriate to their activities.

By drawing matters which are considered importantto Parliament’s attention, the Auditor General canexert pressure on agencies to modify theirbehaviour. However, the Auditor General doesnot have the formal authority to compel any auditedagency to change. Audited agencies are under noobligation to consider, respond to or implementaudit recommendations. In fact, no party is underany obligation to act upon audit findings.Similarly, the Commonwealth Joint Committee ofPublic Accounts (1989:188) found that each of theparties noted below claimed that the implementationand the monitoring of the implementation of auditfindings was someone else’s responsibility:

• parliamentary committees believed thatfollow-up was an Executive Governmentresponsibility;

• the Department of Finance disclaimed themajor responsibility to ensure that auditfindings were acted upon; and

• the Australian Audit Office said that it wasnot its responsibility to follow-up auditfindings. That was the responsibility ofExecutive Government.

The Auditor General does not conduct audits oflocal government. These audits are done byprivate auditing firms and their reports aresubmitted to the Department of Local Government.

The changing role of the Auditor General

In Western Australia the Auditor General isresponsible for auditing 370 agencies withcombined annual transactions of $20 billion.However, a few agencies, such as Health, andEducation account for most of this expenditure.To carry out this responsibility, the AuditorGeneral had 125 officers and a budget of $8.5million in 1993-94.

As the functions of government expanded duringthe post-war era, culminating in major growth in itssize in the 1970s, the demand for accountabilityincreased. More recently, the trends towards down-sizing, contracting out of government services andthe corporatisation of government agencies haveaffected the role of the Auditor General. Forinstance:

• The wide mandate of Auditors Generalmeans that they do not have the resourcesto have all audits conducted by employeesof their Offices. While the Auditor Generalhas retained responsibility for issuing auditopinions, over 20 percent of audits havebeen contracted out to private sectorauditors. Increasingly a risk managementapproach is also being taken. This involvesthe identification and analysis of those riskswhich threaten an organisation. Riskmanagement strategies are designed toavoid the State being exposed to losses andreduced service delivery capability.

• Where government services have beencontracted out to private sectororganisations, the Auditor General’s poweris limited to a review of the governmentagency awarding the contract. The AuditorGeneral can audit the manner in which thecontract was awarded and the practices inplace to ensure the contracted service isdelivered at a reasonable standard.

• When government agencies are corporatisedthey operate more like private sectorcompanies than public service agencies.Their business undertakings are emphasisedand they operate more independently of

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Ministerial direction. As Federalgovernment businesses have become more'corporate', they have been able to choosewhether the Auditor General or some otherregistered company auditor performs theaudit.

The traditional role of the Auditor General has beento highlight deficiencies in financial managementafter they have occurred. In the future, the mandateof the Auditor General could be extended.

Examination, investigation, inquiry and audit

Section 93 of the FAAA states that the AuditorGeneral is required to produce an annual auditopinion on the financial statements, internalcontrols and performance indicators of eachgovernment agency.

Section 80 of the FAAA states that the AuditorGeneral may conduct any investigation that he/sheconsiders necessary. Investigations rarely takeplace and are primarily conducted in response toallegations of impropriety. Section 80 also statesthat the Auditor General may carry outexaminations of the efficiency and effectiveness ofGovernment agencies. Section 47 of the FAAAstates that the Auditor General may direct that aninquiry be held in respect of the losses ofgovernment agencies.

The powers of the Auditor General under the FAAAto access information may be limited to situationswhere the Auditor General is required to conduct an'audit' as distinct from situationswhere he/she may carry out an 'investigation', an'examination' or an 'inquiry'.

Accountability of the Auditor General

In common with other accountable officers, theAuditor General is required to submit annualreports and budget proposals to the Parliament.The Auditor General also reports to Parliament atleast annually on the conduct of audits. Thefinancial statements and performance indicatorsof the Office of the Auditor General are audited byan independent auditor appointed by the Governor.

The wider issue of how Parliament can best bring

the entire public sector under its scrutiny andreview will be considered separately by theCommission on Government (Specified Matter 17).

A 'peer review' was conducted on the Office of theAuditor General in 1993, but its findings were nottabled in Parliament. The term 'peer review' is usedwhen a review is conducted by staff of anotheraudit office and/or a private accounting firm. Asecond external review is currently being plannedand the involvement of the PAERC is being sought.

Audit legislation in New South Wales, Victoria andQueensland and at the Federal level requires thatexternal reviews are conducted periodically. Theaudit legislation in these jurisdictions sets the termsof reference and the process for the selection andappointment of the reviewers and/or empowersParliament or a Parliamentary Committee to do so.Perhaps the most powerful provision is in theVictorian legislation which requires the review todetermine:

whether the Auditor General is achieving his orher objectives effectively and doing soeconomically and efficiently in compliance withthis Act. (s.19(1) Audit Act 1994 (Vic.) )

In Western Australia, the Auditor General hasintroduced the practice of referring matters ofconcern to clients before reports are tabled inParliament.

Auditors General do not have a role in the executivearm of government and should not comment onpolicy decisions, but they are expected to assess theextent to which those policy initiatives have beenimplemented in an efficient and effective manner.This has meant an increase in the performanceexamination role of Auditors General and aconsequent questioning of the expertise ofperformance audit staff to conduct suchexaminations.

The role of the Auditor General in auditingcorporatised government agencies is the subject ofdebate. If public funds are being used to provideservices, the involvement of the Auditor Generalmay be necessary. It can be argued that whetherthese services are being provided by public sectoragencies, corporatised agencies or a contractor, the

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Parliament will only obtain independent informationif the Auditor General is involved. Alternatively,commercial auditors may be able to provide anequally professional audit service.

Currently the Office of the Auditor General is notsubject to all of the accountability requirementsimposed on other government agencies. This raisesthe question 'who audits the auditor?'.

Where the responsibility should lie for following upaudit findings is unclear. In order to maintain anindependent role, Auditors General have notbecome involved with the implementation of theirrecommendations. Perhaps a more systematicapproach to the review and implementation ofrecommendations may be required.

4 SUMMARY

The Commission on Government has been asked toconsider the operation and adequacy of theFAAA as it relates to the provision of information toMinisters, the Parliament and the Auditor General.The Commission has also been asked to considerwhether a person should be entitled to refuse toprovide the Auditor General with information onthe grounds of self-incrimination.

Confidentiality may be necessary for the properconduct of government business. Section 58C ofthe FAAA cuts across the Parliament’s access toinformation and may prevent the Auditor Generalfrom providing the Parliament with valid andreliable information.

Auditors General do not have a decision-makingrole in the executive arm of government but theyare increasingly expected to assess the extent towhich policy initiatives have been implemented inan efficient and effective manner. This has meantan increase in the performance examination role ofAuditors General and a consequent questioning ofthe expertise of performance audit staff to conductsuch examinations.The role of the Auditor General in auditingcorporatised government agencies is the subject ofdebate. If public funds are being used to provideservices, it may be argued that the involvement ofthe Auditor General is necessary. Alternatively,

commercial auditors may be able to provide anequally professional audit service.

The Office of the Auditor General is not subject tothe accountability requirements imposed on othergovernment agencies. This raises the question 'whoaudits the auditor?'.

Where the responsibility should lie for followingup audit findings is unclear. In order to maintain anindependent role, Auditors General have notbecome involved with the implementation of theirrecommendations. A more systematic approach tothe review and implementation of recommendationsmay be required.

Parliament receives information from manysources. Measures to provide the Parliament withindependent financial information focus on theAuditor General’s role in providing an objectiveassessment of information within the public sector.

The Royal Commission recommended that theAuditor General should have access to all relevantinformation even if it led to self-incrimination. Theprivilege against self-incrimination and legalprofessional privilege are an important protectionfor individuals. Therefore, any change to thesecommon law rules requires careful consideration.

It may be necessary to strike a balance betweenpreserving the confidentiality of Cabinetdocuments and the right of the Auditor General toaccess them and provide Parliament with relevantinformation. The independent role of the AuditorGeneral may be compromised if he/she had accessto Cabinet documents which he/she was obliged tokeep secret.

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• What measures are needed to ensure theaccountability of the Auditor General?

• Should performance audits be conducted?

• By whom should audit reports befollowed up?

Important Issues

• Does the FAAA assist in providing theParliament, Ministers and the AuditorGeneral with useful information?

• To what information should theParliament, Ministers and the AuditorGeneral have access?

• How should government agencies and theAuditor General report to Parliament?

• To what extent should s.58C of FAAA beamended to enable Parliament and theAuditor General to be informed ofcontractual and other obligations enteredinto by the government?

• Should there be a separate audit Act?

• Should a Joint Parliamentary Committeeor some other body have responsibilityfor appointing and monitoring theperformance of the Auditor General?

• How should the budget of the Office ofthe Auditor General be determined: as itis now; directly by Parliament; or insome other manner?

• Should the Auditor General have thepower to call for information and compelthe appearance of persons?

• Should legal professional privilege beavailable to persons compelled to giveinformation to the Auditor General?

• Should the privilege against self-incrimination be available to personscompelled to give information to theAuditor General?

• Should the Auditor General have thepower to access Cabinet documents?

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REFERENCES

Australian Society of Certified PractisingAccountants and the Institute of CharteredAccountants in Australia (1987) IntroductoryStatement on Applicability of Statement ofAuditing Standards and Statements of AuditingPractice to Auditing the Public Sector Sydney

Australian Society of Certified PractisingAccountants and the Institute of CharteredAccountants in Australia (1987) Statement ofAuditing Standards AUS 1 Sydney

Australian Society of Certified PractisingAccountants (ASCPA) (1994) The Importance ofthe Role of Independent Auditors GeneralMelbourne

Byrne, D.M. and J.D. Heydon (1986) Cross onEvidence Third Edition Melbourne:Butterworths

Commonwealth Joint Committee of PublicAccounts (JCPA) (1989) The Auditor General:Ally of the People & Parliament Report 296Canberra: Australian Government PublishingService

Ligertwood, A.L.C. (1988) Australian EvidenceMelbourne: Butterworths

New South Wales Public Accounts Committee(1994) Preparation for Peer Review of AuditorGeneral’s Office Sydney

New South Wales, Auditor General (1993) AuditorGeneral’s Report Sydney

New South Wales, Public Accounts Committee(1990) Report on the New South WalesAuditor General’s Office Sydney

Parker, L (1986) Value-For-Money Auditing:Conceptual Development & Operational IssuesMelbourne: Australian Accounting ResearchFoundation

Queensland, Electoral & Administrative ReviewCommission (1990) Issues Paper No. 9Review of Public Sector Auditing in Queensland

Brisbane: Electoral and AdministrativeReview Commission

Sharp, M (1992) Report of the IndependentAuditor on an Efficiency Audit of the AustralianNational Audit Office Canberra: AustralianGovernment Publishing Service

Taylor, J (1992) ’Public Accountability’Australian Journal of Public Administration 51(4): 455-460

Victoria, Public Accounts & Estimates Committee(1993) Report on the Performance Audit ofthe Auditor General of Victoria Melbourne:Government Printer

Western Australia, Office of the Auditor General(OAG) (1994) 1993-94 Annual Report Perth

Western Australia, Office of the Auditor General(OAG) (1994) 1994-97 Corporate Plan Perth

Western Australia, Commission on Accountability(1989) Report to the Premier Perth

Western Australia, Royal Commission intoCommercial Activities of Government & OtherMatters (WA Royal Commission) (1992) ReportPart I (Volumes 1-6); Part II, Perth

Western Australia, The Public Accounts &Expenditure Review Committee (PAERC) (1991)Annual Reporting and the Parliament DiscussionPaper No. 1 Perth

Western Australia, The Public Accounts &Expenditure Review Committee (PAERC) (1992)Report on the Recommendations on Independenceof the Auditor General and the Office of theAuditor General Perth

Western Australia, Auditor General’s PolicyAdvisory Committee (1991) Recommendations onIndependence of the Auditor General and theOffice of the Auditor General Perth

Western Australia, Auditor General’s PolicyAdvisory Committee (1990) Discussion Paper onthe Independence of the Auditor General and theOffice of the Auditor General Perth

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Legislation

Audit Act 1901 (Cwlth)

Audit Act 1994 (Vic.)

Audit Bill 1994 (NT)

Auditor General Act 1976-77 (Canada)

Auditor-General Bill 1994 (Cwlth)

Commonwealth Authorities & Companies Bill1994 (Cwlth)

Corporations Law

Evidence Act 1906

Financial Administration & Audit Act 1978 (NT)

Financial Administration & Audit Act 1977 (Qld)

Financial Administration & Audit Act 1985

Financial Management & Accountability Bill 1994(Cwlth)

Financial Management & Audit Act 1990 (Tas.)

Public Finance & Audit Act 1983 (NSW)

Cases

The Commonwealth of Australia v Northern LandCouncil (1993) 112 ALR 409

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COMMISSIONONGOVERNMENT

DISCUSSION PAPER NO. 3

SPECIFIED MATTER :

NO. 15ELECTORAL SYSTEM- LEGISLATIVE COUNCIL

NO. 16ELECTORAL SYSTEM- LEGISLATIVE ASSEMBLY

6th Floor, May Holman Centre32 St George’s TerracePerth WA 6000

Telephone :(09)222 0544Facsimile : (09)222 0522

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background provided, are not intended to be anexhaustive list and submissions may address anyother relevant issues.


SUBMISSIONS


FORMAT






CONTENT




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PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if and tothe extent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of Parliament.

The Commission may also inquire into othermatters it considers relevant to the prevention ofcorrupt, illegal or improper conduct in the publicsector.

The Specified Matters, which are set out in theFirst Schedule of the Commission on GovernmentAct 1994, provide the initial focus of theCommission’s inquiries. The relevant issues,however, cannot be addressed in a vacuum. TheCommission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This appliesalso to any matters which may become part of theCommission’s inquiries. We have concluded that itis necessary to address the context in which theSpecified Matters have arisen, the historical,contemporary and topical circumstances and eventswhich surround them and their relevance for thefuture.



This paper deals with Specified Matters 15 and 16,relating to the electoral systems for representationin the Legislative Council and LegislativeAssembly.

The paper identifies some of the issues which maybe relevant to the Commission’s task and providesinformation and background on those issues. Theissues identified, and the information and

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CONTENTS

INTRODUCTION

Part I

1 THE CURRENT ELECTORALSYSTEM FOR THE LEGISLATIVEASSEMBLY

1.1 Single Member Electoral Districts1.2 Preferential Voting1.3 Rural Weighting and Malapportionment1.4 Party Representation

2 OPTIONS FOR THE LEGISLATIVEASSEMBLY

2.1 Retention of Single Member ElectoralDistricts

2.2 Proportional Representation2.2.1 Statewide Proportional

Representation

2.2.2 Simulated Statewide ProportionalRepresentation

2.2.3 Mixed Member Proportional Voting2.3 The Removal of Rural Weighting and

Malapportionment: ‘One Vote One Value’2.3.1 A Simulated ‘One Vote One Value’

Distribution2.3.2 Maps and Statistical Notes

Part II

3 THE CURRENT ELECTORALSYSTEM FOR THE LEGISLATIVECOUNCIL

3.1 Proportional Voting3.2 Rural Weighting and Malapportionment3.3 Current Results

4 OPTIONS FOR THE LEGISLATIVECOUNCIL

4.1 Removal of Malapportionment by a SingleStatewide Electoral District4.1.1 Simulated Statewide Proportional

Representation4.2 Staggered Elections and Fixed Terms4.3 Modifying Proportional Representation

Part III

5 OPTIONS FOR ELECTORALSYSTEMS FOR BOTH HOUSES OFPARLIAMENT

5.1 Representation of Minority Interests5.2 Differentiating Between the Roles of the

Houses of Parliament5.3 Other Aspects of the Electoral System

6 AN IDEAL ELECTORAL SYSTEM?

REFERENCES


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INTRODUCTION

Elections have great practical and symbolicimportance in democracies. Free elections are acritical component of any system of goodgovernment. They protect the rights and freedomsof members of the community and act as amechanism for making public office holdersaccountable.

Western Australians have well developed machineryfor running elections in an open and impartial way.This does not mean that the electoral process isuncontroversial. There are differences of opinionover the details of how elections are run and, ofmore importance, what political values electionsshould enhance.

Much of this difference of opinion stems fromdisagreements over what elections should bedesigned to achieve. If the role of Parliament is torepresent as accurately as possible the range ofopinions in the community, then the electoralsystem should stress proportional representation ofelectors. If the role of the Parliament is to generatemajorities in the Parliament, then proportionality isless important than enhancing the representation oflarge parties. In either case, the system should actas a check on improper behaviour in the publicsector.

This raises the issue of the role of political partiesin the electoral process and in our system ofdemocracy as a whole. Disciplined mass partieshave had a dominating role in the electoral processsince their emergence in Australia in the early1900s. They have had the effect of simplifying theelectoral choice for voters, and creating disciplinedand stable partisan blocks of votes in Parliament.

The process is especially important inparliamentary systems such as ours where thegovernment of the day is dependent on maintaininga stable majority in the lower house of Parliament.These developments complicate the answer to thequestion of what is being represented in aParliament.

Is a member of parliament elected to:

1. Express the views of a majority of electors inhis/her electoral district?

2. Express the views of particular groups ofpeople?

3. Express a view of the public interest, whetheror not electors agree?

4. Support the views of the political party ofwhich he/she is a member?

5. Support or oppose the government of the day?

Depending on the answer to this question, differentelectoral systems are required. If the answer is 1, 2or 3, the electoral system should work to enhancethe autonomy of individual members of parliament,and reduce the influence of party. If the answer is 4or 5, the electoral system should work to enhancethe influence of party and reduce the role of theindividual representative. Indeed, if the answer is 5,elections are little more than periodic opinion pollson the adequacy of the government of the day.

If, as in Western Australia, the Parliament iscomposed of two elected chambers, there is theadditional question of the principles to be used todifferentiate between the electoral systems of thetwo houses.

The goal of this discussion paper is to focus onissues that relate directly to the effectiveness of theelectoral system in producing a Parliament thatreflects the political preferences of the people ofWestern Australia, and thereby acts as a continuingcheck on the operation of the government of theday.

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Part I

1 THE CURRENT ELECTORAL SYSTEMFOR THE LEGISLATIVE ASSEMBLY

Western Australia has a bicameral (two house)parliamentary system. The lower house is calledthe Legislative Assembly, and the upper house theLegislative Council. The two houses have similarpowers, and bills must pass both houses before theybecome law. The Legislative Assembly can becalled the house of government, because in ourparliamentary system, the government of the daymust be supported by a majority of members in thelower house, even though the government may nothave such support in the Legislative Council. Itcan be argued that being the house of government isan important consideration in the choice of electoralsystem for the Legislative Assembly.

1.1 Single Member Electoral Districts

As the name implies, a system of single memberelectoral districts means each member of theLegislative Assembly is given a specific geographicregion called a 'district' to represent. The memberof parliament becomes the representative for all theelectors in that district. Single member electoraldistricts require the successful candidate to gain amajority of votes, or the largest share of votes cast.

Examples of such systems are:

• simple majority (most votes gained or ‘firstpast the post’), eg Canada and the UnitedKingdom;

• absolute majority (preferential voting), egall lower houses in Australia except inTasmania and the ACT; and

• absolute majority, with a second 'run off'ballot if no candidate gains a majority ofvotes, eg France (when electing itsPresident).

1.2 Preferential Voting

The voting system for the Legislative Assemblyrequires each voter to number all the candidates inthe order of the voter’s preference. The voter must

allocate the number ‘1’ to his/her most preferredcandidate, ‘2’ to the next preferred, and so on untilall candidates are allocated a preference (a ballot isnot valid unless preferences for all the candidatesare indicated).

To win a seat for the Legislative Assembly, acandidate must gain one more than 50 percent ofthe total valid vote for the district. If no candidatewins the necessary majority of ballots with thenumber ‘1’ beside his/her name (first preferences),the candidate with the least number of firstpreference votes is excluded and his/her second andfurther preferences are distributed to the remainingcandidates. This process continues until acandidate receives a majority of votes.

1.3 Rural Weighting and Malapportionment

Rural weighting is a form of malapportionment,that is, a situation where parliamentary seats haveunequal numbers of electors. In the LegislativeAssembly, it takes fewer non-metropolitan votes toelect a member of parliament than is required for ametropolitan member. At present, 34 of theLegislative Assembly’s 57 seats are allocated bylaw to the metropolitan area and 23 seats to theremainder of the State. The average number ofelectors in each metropolitan seat is 22,337, and ineach non-metropolitan seat, 11,887. This allocationof seats between metropolitan and non-metropolitanareas was set in 1987 by the Acts Amendment(Electoral Reform) Act 1987, and replaced asystem which was even more malapportioned. Ascan be seen from Table 1, the Western AustralianLegislative Assembly is more malapportioned thanany other lower house in Australia.

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Table 1

Comparison of Lower Houses Electoral District Size Extremes

State/Territory Smallest Largest Variation Variation Quotas Statutory District District % of electors Quota

Variation %

Australian Ginninderra MolongloCapital Territory1 56,318÷5 81,206÷7 3.0 337 65,130 -

= 11,264 = 11,601

New South Wales Newcastle Camden 35,491 45,462 28.1 9,971 38,365 ±5

Northern Territory Fannie Bay Goyder 3,402 4,072 19.7 670 3,746 ±20

Queensland2 Warrego Kallangur 14,082 27,996 98.8 13,914 22,071 ±10

South Australia Elizabeth Mawson 18,645 23,641 26.8 4,996 21,165 ±10

Tasmania3 Denison Lyons 61,178÷7 64,906÷7 6.1 532 - - = 8,740 = 9,272

Victoria Frankston Eltham East 36,707 28.3 8,096 32,803 ±10 28,611

Western Australia4 Ashburton Wanneroo 8,315 31,546 279.4 23,231 19,685 & ±15

10,438

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Notes

1 Proportional representation is used, with one seven-member electorate and two five-member electorates in the Australian CapitalTerritory.

2 Kallangur in Queensland is thirty percent above quota. The district of Warrego is one of five remote rural districts which has anarea in excess of 100,000 km², and its boundaries are determined by the Electoral Act 1992 (Qld).

3 Five electorates each returning seven members, using the Hare-Clark system in Tasmania.

4 Wanneroo is, at present, sixty percent above the quota. The district of Ashburton is more than twenty percent below quota. Newboundaries were set for all Legislative Assembly Districts. These boundaries will be in effect for the next State General Electionthat is due by 1997.

Sources.(Figures: WA 2/2/95; NSW 1/2/95; Vic. 5/1/95; Qld 31/1/95; NT 10/2/95; SA 22/12/94; ACT 10/2/95; Tas. 31/12/92). Figuresobtained from the appropriate State Electoral Commissions and Departments on 10/2/1995.

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1.4 Party Representation

In spite of malapportionment, the representation ofthe larger parties in the Legislative Assembly hasbeen roughly proportional to the first preferencevotes for these parties. On most occasions since1945, the party (or coalition of parties) with themost votes has won the most seats and formed thegovernment. This is because the larger parties winseats in both the metropolitan and non-metropolitanareas. The figures for the 1993 election are listedin Table 2.

Table 2

1993 Western Australian Legislative Assembly General Election Results

LIB LAB NAT GRN DEM IND OTHER Total

First Pref. Votes 402,402 338,008 48,394 39,300 21,147 16,009 46,218 911,478

% Valid Votes 44.1 37.1 5.3 4.3 2.3 1.8 5.1 100.0

Seats 26 24 6 0 0 1 0 57

% Seats 45.6 42.1 10.5 0 0 1.8 0 100.0

2 OPTIONS FOR THE LEGISLATIVEASSEMBLY

Given the characteristics of the electoral system forthe Legislative Assembly set out above, it is clearthat there are many aspects of the system that mightbe changed. But there is also the option of leavingthings as they are. In the sections below some ofthe major aspects of the electoral system that mightbe changed are discussed, including an examinationof arguments for maintaining the present system, orfeatures of it.

2.1 Retention of Single Member ElectoralDistricts

Single member electoral districts of the kind nowused for the Legislative Assembly are used for theCommonwealth and all State and Territory lowerhouses except those of the Australian CapitalTerritory and Tasmania. Such single memberdistricts are to be contrasted with the multi-memberdistricts that are required for proportional systems

of representation (see later discussion). Supportersof the retention of single member electoral districtsargue that:

• there is greater stability for the governmentof the day, as single member systems arelikely to enhance the representation oflarger parties to produce majorities inParliament;

• constituents have a ‘local’ member ofParliament; and

• most lower houses in Australia and otherWestminster based systems have had singlemember electoral districts and the system iswell understood by the electorate.

Opponents of single member districts argue that itfavours a ‘winner takes all’ approach and argueagainst it on the following grounds:

• single member electoral systems do nottranslate a party’s share of votes into asimilar share of seats;

• minorities whose votes are not concentratedin a small number of seats are penalised byfailing to gain representation;

• single member electoral districts can leavemany electors unrepresented because theirfirst preference on the ballot paper was notelected;

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• single member electoral districts encouragethe maintenance of a two party system,which has been criticised because it limitsvoter choice and, when there is a change ofgovernment, leads to major shifts in publicpolicy; and

• single member electoral districts oftenproduce a single party government whichreduces the checks on possible abuse ofpower.

2.2 Proportional Representation

The major problem with single member districtsand preferential voting of the kind now used for theLegislative Assembly, is that there is no guaranteethat a given percentage of votes will be representedby a similar percentage of seats in the LegislativeAssembly. Proportional representation is the namegiven to a wide range of electoral systems intendedto ensure that there is a close relationship betweenthe votes and seats gained by parties and groups ofvoters and that, as a consequence, a range of viewswill be represented in a parliamentary chamber.

The following are arguments in favour ofproportional representation:

• It ensures that the number of seats won by aparty is proportional to the number of votesit receives, thus ensuring that parliament isan accurate reflection of public support onpolling day.

• Minority parties and groups, andindependents with broadly based popularsupport are more likely to gainrepresentation.

• It requires larger multi-member electorates,thereby reducing the scope formalapportionment, thus giving greaterelectoral fairness.

• It forces parties to consider compromise inthe choice of policies.

• The larger the number of members perdistrict to be elected, the greater theaccuracy of the representation.

The major argument against proportionalrepresentation is that support for the largest partiesis often evenly divided. Proportional representationin a lower house will deny any party (or a tightcoalition of parties) a clear majority of seats. Thiswill often lead to the dependence of governments onminor party and independent members ofparliament, with the consequence thatparliamentary majorities cannot be taken forgranted. In this sense, such governments are muchmore accountable to the lower house of parliamentthan is usually the case under non-proportionalsystems of voting. This situation is oftensummarised by saying that proportionalrepresentation in the lower house works againststrong government.

2.2.1 Statewide Proportional Representation

If the principle of proportional representation isaccepted, there are many systems to choose from.One option would be to have the State as a singleelectoral district electing 57 members. This systemwould do away with malapportionment, since therewould be no district boundaries to draw. Such asystem would have given the following result at the1993 Western Australian General Election. Notethat in this case (see Table 3), the Liberal Party andthe National Party would gain a clear majority ofseats, as they did under the present non-proportional system.

2.2.2 Simulated Statewide Proportional Representation

Under this simulated model, the entire state wouldhave voted as one electorate with the appropriatequota established as 15,715. The enrolment levelfor Western Australia as at the 1993 GeneralElection (911,478) was divided by the number ofcandidates to be elected (57) plus one. The resultsof this simulation are shown in Table 3.

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Results were calculated using the following preference distribution rules: Independents/Others: 50% Labor, 50% Liberal.Australian Democrats: 67% Labor, 33% Liberal or 100% Greens. Greens W.A.: 80% Labor, 20% Liberal or 100% AustralianDemocrats. National Party: 20% Labor, 80% Liberal. In addition, these rules are used for the transfer of preferences when thismodel is applied to the Legislative Council later in this paper.

2.2.3 Mixed Member Proportional Voting

Under this system, half of the representatives toParliament are elected from constituencies and theother half from party lists. Each voter has twovotes. The first is for a candidate in the localconstituency seat, and this is carried out in the samemanner as ‘first past the post voting’. The secondvote is for a particular party. All the voter has todo is express a preference for a political party. Aresult in each constituency is decided by a simplemajority, while the party’s share of the statewide

vote determines the total number of seats that theparty has in parliament.

Mixed member proportional voting increases thepower of parties, because it is they who decidewhich candidates, and in what order they will beelected. Many major party candidates areguaranteed election even before the ballots havebeen cast. This is because the major parties canexpect to command a guaranteed share of the vote.

Table 4 illustrates the operation of a mixed memberproportional voting system:

Table 4

An Example of a 60 Member, Mixed Member Proportional Voting System

First Thirty Percentage of Second Thirty Total Seats (Constituency) Party List (Party List)

Seats Votes Won Seats1

Party A 15 45.0 12 27

Party B 13 40.0 11 24

Party C 2 15.0 7 9

1 The number of list seats allocated to a party is determined by the percentage of the party list vote won by that party. For example, Party C win 15% of 60 seats totalling 9.

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Table 3

1993 Western Australian Legislative Assembly General Election ResultsUnder a Statewide Proportional Representation System


Seats 27 23 3 3 1 0 0 57

% Seats 47.4 40.3 5.3 5.3 1.7 0.0 0.0 100.0

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The 1986 New Zealand Royal Commission on theElectoral System recommended the adoption of amixed member system on the grounds that:

• it was the system which ensured greatestfairness and greater proportionality betweenthe political parties;

• it provided representation for minority andspecial interest groups, subject to eachgroup obtaining a threshold of 4 percent ofthe total vote; and

• it ensured greater political integration byminorities gaining representation in theirown right, and by the major political partiesincluding minorities in their lists tomaximise the party vote.

2.3 The Removal of Rural Weighting andMalapportionment: ‘One Vote One Value’

‘One vote one value’ is a phrase used to express thebelief that all votes should be of the same weight.In an electoral system with single member districtsthis requires that all electoral districts shouldcontain the same number of electors and that thereshould be no malapportionment or weighting of anykind. In practice, a margin of plus or minus 10percent in the number of electors is usuallypermitted to accommodate population changes and

community interests in the drawing of boundaries.During the past decade, New South Wales, Victoriaand South Australia have reformed their electoralsystems so that they are as close to ‘one vote onevalue’ as single member electoral districts willallow. Queensland has adopted the same principlewith an exception for those electors who live indistricts larger than 100,000 square kilometres.New South Wales and South Australia haveentrenched the principle of equal enrolments for allelectorates in their respective Constitutions.Tasmania, which uses the Hare-Clark proportionalrepresentation system, has operated under theprinciple of ‘one vote one value’ since 1909.

As mentioned above, Western Australia has anelectoral system that builds in substantialmalapportionment in favour of the non-metropolitanareas of the State (See Table 5).

This means metropolitan seats have 22,370 electorsper seat. Non-metropolitan seats have 11,887 votersper seat. There is a ± 15 percent populationvariation allowed.

The figures taken from the 1994 WesternAustralian Electoral Redistribution show that inthe Legislative Assembly it requires the votes of1.88 metropolitan electors to equal the vote of one

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Table 5

Present Zoning System in the Western Australian Legislative Assembly

No. of No. of Seats Allocated Electors by Parliament

Metropolitan Area Enrolment 760,595 34

Country Enrolment 273,411 23

non-metropolitan elector.

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The following summarises the arguments relating tovote weighting.

For:

• Rural areas produce the wealth of the State sothey should have an equal say in government.

• Communication problems outside themetropolitan area demand geographicallysmaller electorates.

• A numerical domination by the metropolitanarea in Parliament would overwhelm ruralinterests.

• A lack of resources and services in ruralareas deserves compensation throughrepresentation.

• Rural weighting permits smaller and moremanageable electorates.

Against:

• Representation should reflect people not wealth.

• Technological advances have improvedcommunications over long distances.

• Western Australian electors should have equalparliamentary representation.

• Compensation should be through governmentdecision not the electoral process.

• Technological advances and extra resources andstaff can overcome problems associated with

large electoral districts.In large part, arguments over rural weighting arearguments over the relative importance of therepresentation of community and minority interestsrather than simple aggregates of individuals.

In a recent judgement (Reference re ElectoralBoundaries Commission Act 81 D.L.R. (4th), 16),the Canadian Supreme Court stated that thepurpose of the right to vote ... is not equality ofvoting power per se, but the right to ‘effectiverepresentation’. Parity of voting power is of primeimportance but is only one factor to be taken intoaccount in ensuring effective representation. Thevalue of a citizen’s vote should not be undulydiluted, but absolute parity is impossible and insome circumstances undesirable and justified.Factors such as geography, community, history,community interest and minority representationcan be taken into account to ensure that ourlegislative assemblies effectively represent thediversity of our social mosaic. Beyond this,dilution of one citizen’s vote as compared toanother’s should not be accepted .

2.3.1 A Simulated ‘One Vote One Value’ Distribution

If all seats in Western Australia’s lower house hadapproximately the same number of electors therewould be 18,140 in each district. Based on a 57seat Legislative Assembly this would produce 41metropolitan seats and 16 non-metropolitan seats.Applying the distribution criteria in the ElectoralDistribution Act 1947 but excluding the zoningcriterion the following hypothetical outcome wouldbe produced, based on the 1993 LegislativeAssembly General Election Results. (See Tables 6,7, 8, 9 and Maps 3 and 4).

Table 6

1993 Western Australian Legislative Assembly General Election ResultsUnder a ‘One Vote One Value’ Simulation


Seats 27 24 5 0 0 1 0 57

% Seats 47.4 42.1 8.8 0.0 0.0 1.7 0.0 100

Results were calculated using the following preference distribution rules: Independent/Others: 50% Labor, 50% Liberal. NationalParty: 20% Labor, 80% Liberal. Green: 80% Labor, 20%. Democrat: 67% Labor, 33% Liberal. Labor: 20% Liberal, 80 National.Liberal: 20% Labor, 80% National.

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Coolgardie-Esperance 16,573

2.3.2 Maps and Statistical Notes

Maps 3 and 4 illustrate one possible design ofelectoral boundaries for the Legislative Assembly inWestern Australia under a system of ‘one vote onevalue’. The actual Legislative Assembly electoralboundaries, as drawn up by the DistributionCommissioners during the 1994 Redistribution areattached for comparison (see Maps 1 and 2). Atthe outset, it should be stressed that Maps 3 and 4are only one possible simulation of the applicationof this principle. These maps should not be viewedas a definitive or final representation of theprinciple of ‘one vote one value’ in WesternAustralia.

The construction of the Legislative Assemblyboundaries was carried out according to thefollowing procedure. The quota was determined bydividing the total State enrolment as at 7 February1994 (the date of the commencement of the mostrecent distribution of electoral boundaries) by thenumber of seats. A ten percent variation wasestablished to determine the upper and lower limitsto the size of all Legislative Assembly districts (seeTable 1 for other State variations).

Table 7

Statistical Information for Simulated Division ofState Electoral Boundaries

Total State Enrolment: 1,034,006 Legislative Assembly Districts: 57 Quota: 18,140 Variation (±10%): 19,954 - 16,326

Construction of the boundaries was carried outusing local government authority boundaries andenrolment figures as at 9 March 1994. Completelocal government authorities and their wards werecombined until the enrolment level of the possibleLegislative Assembly district was within theallowable variation from quota. Wherever possible,community of interest and other factors used by theElectoral Distribution Commissioners wereconsidered when the boundaries on these maps wereconstructed.

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When the enrolment levels of some localgovernment authorities are examined, it can be seenthat it was not always possible to take such factorsinto consideration. In addition, it was not possibleto take projected population growth into accountwhen determining these boundaries. Thus, there isno guarantee that the electoral districts simulated onthe following maps would remain within quota forthe next Western Australian general election.

Table 8

Estimated Enrolments of SimulatedNon-Metropolitan Legislative Assembly

Electoral Districts

Simulated District Estimated Enrolment

Albany 17,417

Ashburton 17,382

Bridgetown 16,980

Bunbury 17,235

Geographe 18,756

Geraldton 18,162

Harvey 17,736

Kalgoorlie 18,315

Katanning 16,799

Kimberley 17,010

Mandurah 18,055

Murchison 16,675

Murray 16,602

Tammin 16,980

Victoria Plains 19,414

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Table 9

Estimated Enrolments of Simulated Metropolitan LegislativeAssembly Electoral Districts

Simulated District Estimated Enrolment Simulated District Estimated Enrolment

Armadale 19,082 Kensington 17,803

Balga 16,429 Kwinana 19,776

Belmont 17,628 Leederville 19,273

Bentley 17,822 Maida Vale 17,897

Bibra Lake 19,246 Maylands 19,523

Booragoon 18,956 Melville 19,303

Bullsbrook 18,847 Midland 19,075

Cannington 17,115 Mundaring 16,968

Cottesloe 18,091 Nedlands 19,278

Dianella 19,278 Osborne Park 18,128

Embleton 16,607 Perth 19,022

Forrestfield 19,380 Pinnaroo 18,535

Fremantle 17,302 Roleystone 17,538

Gnangara 18,535 Safety Bay 19,111

Gosnells 19,698 Thornlie 16,953

Greenwood 18,535 Trigg 18,564

Hamersley 17,523 Wanneroo 18,223

Hillarys 18,535 Wembley 18,765

Hilton 17,254 Willetton 19,302

Jandakot 19,259 Yokine 19,075

Joondalup 16,681

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of preference (in the same manner as preferentialvoting for the Legislative Assembly). Thesepreferences are then summed in a complexprocedure that elects candidates in the order inwhich they gain a set quota of votes, until therequired number of candidates is elected.

But voters are offered an alternative and muchsimpler method of voting by writing the number ‘1’in the box adjacent to the elector’s preferred partyfrom a list of parties above the line on the ballotpaper. When the ballots are counted, a set ofpreferences for all candidates is automaticallytransferred to the ballot according to the chosenparty’s ticket which has been lodged with theElectoral Commissioner before polling day.

This latter variation creates a list system ofproportional representation which givesconsiderable power to political parties to determineboth the order in which their candidates are chosen,and the flow of preferences to other parties.

3.2 Rural Weighting and Malapportionment

Inequality between metropolitan and non-metropolitan voters is more marked in theLegislative Council than it is in the LegislativeAssembly. It takes the votes of 2.78 metropolitanelectors to equal the vote of 1 non-metropolitanelector in the Legislative Council.

Part II

3 THE CURRENT ELECTORAL SYSTEMFOR THE LEGISLATIVE COUNCIL

Since 1989, the 34 members of the LegislativeCouncil have been elected by proportionalrepresentation from five multi-member electoraldistricts. Four electoral districts return fivemembers, and two districts return seven members.All members have fixed four year terms. Thisarrangement resulted from the extensive changesintroduced by the Acts Amendment (ElectoralReform) Act 1987.

Three of the six multi-member electoral districts arein the metropolitan area and three are in theremainder of the State. Each of these two areasreturns 17 members, even though there is a markeddifference between the number of electors from thetwo areas.

3.1 Proportional Voting

The Legislative Council has a system ofproportional representation for electingrepresentatives from the five and seven memberelectoral districts. The method of proportionalvoting is based on the single transferable votesystem in which a voter is required to rank all thecandidates on the ballot paper in the voter’s order

Table 10

Present Structure of the Western Australian Legislative Council

Region Council Members No. of Electors Ave no. of Electorsper Member

East Metropolitan 5 227,055 45,411

North Metropolitan 7 312,209 44,601

South Metropolitan 5 221,337 44,267

TOTAL 17 760,601 44,741

South West 7 121,428 17,347

Agricultural 5 87,137 17,427

Mining & Pastoral 5 64,840 12,968

TOTAL 17 273,405 16,083

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(For a general discussion of the advantages anddisadvantages of rural weighting, see section 2Options For The Legislative Assembly).

3.3 Current Results

Table 11 shows the number of votes won by eachparty as well as their percentage of the total validvotes and the number of seats won at the 1993Western Australian General Election:

Table 11

1993 Western Australian Legislative Council General Election Results

4 OPTIONS FOR THE LEGISLATIVECOUNCIL

4.1 Removal of Malapportionment by a SingleStatewide Electoral District

If the 34 members of the Legislative Council wereelected from a single statewide electoral districtusing proportional representation,malapportionment and rural weighting would beremoved.

4.1.1 Simulated Statewide Proportional Representation

At the 1993 Western Australian General Election,the minimum number of votes that a candidatewould have to receive under this simulation to beelected to the Legislative Council would have been26,194. This figure was calculated by dividing thetotal number of votes cast in the entire State(916,783) by the number of candidates to be elected(34) plus one.

Table 12

1993 Western Australian General Election Results Under a Statewide ProportionalRepresentation System for the Legislative Council


Seats 16 13 1 2 1 1 0 34

% Seats 47.1 38.2 2.9 6.0 2.9 2.9 0.0 100.0

Results were calculated using the following preference distribution rules: Independents/Others: 50% Labor, 50% Liberal.Australian Democrats: 67% Labor, 33% Liberal or 100% Greens. Greens W.A.: 80% Labor, 20% Liberal or 100% AustralianDemocrats. National Party: 20% Labor, 80% Liberal.

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First Pref. Votes 418,039 337,554 36,614 47,305 27,640 38,304 11,327 916,783

% Valid Votes 45.6 36.8 4.0 5.2 3.0 4.2 1.2 100.0

Seats 15 14 3 1 0 1 0 34

% Seats 44.1 41.2 8.9 2.9 0 2.9 0 100.0


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It should be stressed that the models presented hereare merely simulations applied to the 1993 WesternAustralian General Election voting results.

The above tables are based on the figures andstatistics from the 1993 Western Australian generalelection.

4.2 Staggered Elections and Fixed Terms

If there is a single statewide electoral district for theLegislative Council, it is not necessary for allmembers of the Council to be elected at the sametime. Half could be elected every 4 years with eachmember having an eight year term. Such a systemwas in place in Western Australia (using 2 memberelectoral districts and preferential voting) before the1989 election, with half the members facing theelectorate every three years, each member of theLegislative Council (MLC) having a 6 year term.

A similar system using proportional representationis employed for the Senate. South Australia has asystem of statewide proportional representationwhere half the members of the upper house contesttheir seats at each election unless there is a doubledissolution. New South Wales elects a third of themembership of its Legislative Council every timethere is an election, each MLC having a maximumterm of 12 years.

The justification for staggered terms for membersof the upper house is to restrain the rate of changeand to act as a brake on governments based ontransitory majorities in the lower house. As such, itis a way of signalling that the role of the upperhouse is to be a check on the government of the daybased on the control of a majority of members inthe lower house. The same applies to fixed termsfor MLCs rather than making their terms the samelength as one or more Legislative Assembly terms.

4.3 Modifying Proportional Representation

Another option for the Legislative Council couldinvolve abolishing the present party list system ofvoting (the option of voting above the line on theLegislative Council ballot paper). This woulddiminish the influence of political parties, as theirpredetermined preference lists could not be used by

the Electoral Commission to automatically transferpreferences on the ballot papers.

Such modification would abolish safe positions atthe top of party tickets. This would force allcandidates to compete actively for votes from aposition of relative equality.

The disadvantage of this option is likely to be anincrease in informal voting as the simplicity ofvoting for a party list would be removed and voterswould have to number all boxes on the ballot paper.This increase in informal voting could be minimisedby the adoption of a system which required thevoter to express only a minimum number ofpreferences, as is used in the electoral system forthe Tasmanian lower house.

Part III

5 OPTIONS FOR ELECTORAL SYSTEMSFOR BOTH HOUSES OF PARLIAMENT

5.1 Representation of Minority Interests

Broad representation of interests, includingminority interests, may lead to more accountablegovernment. Australia is in a good position to takeadvantage of both the successes and mistakes ofother countries in an attempt to secure effectiverepresentation of minority interests in parliament,particularly those of indigenous peoples.

For example, Canadian and New Zealand electoralsystems provide seats in their Parliamentsspecifically for the representation of theirindigenous populations.

In order to ensure that Aboriginal and Torres StraitIslander people have effective representation oftheir interests, there may need to be changes to thecurrent electoral system.

Statewide proportional representation, for example,may provide Aboriginal groups and other minoritieswith opportunity for more effective representation.

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Important Issues:

• Is the representation of Aboriginal andother minority interests sufficiently cateredfor under the electoral system?

• Should there be seats set aside forindigenous representatives in Parliament?

• Should ethnic and community interests, aswell as rural interests, be guaranteed aspecified proportion of the seats in theLegislative Council? If so, how shouldthis be determined?

5.2 Differentiating Between the Roles of theHouses of Parliament

Governments are made in the lower house, theLegislative Assembly, and this has a stronginfluence on debate over suitable electoral systemsfor that chamber. The larger parties argue thatachieving stable party majorities in the lower houseis a proper and important goal of an electoralsystem, even though such a system does not reflectexactly the balance of partisan support in thecommunity. This view stresses stability at theexpense of proportionality, and is likely to favoursingle member electoral systems with preferentialvoting.

On the other hand, others argue that stability isoverrated, and that the responsiveness ofgovernment to the people’s representatives in thelower house can be enhanced by proportionalrepresentation that may give the balance of powerto minor party and independent members.

Whatever the electoral system chosen for the lowerhouse, it may be appropriate to have a differentsystem for the Legislative Council. If this is so,what values are to be enhanced in the upper house?The Royal Commission into the CommercialActivities of Government and Other Matterssuggested that the electoral system for the Councilshould enhance the values of representing a rangeof views and acting as a brake on the actions ofgovernment (WA Royal Commission, 1992: II 5.3).This implies some system of proportional

representation that represents the diversity ofpolitical interests and, perhaps, some restraint onthe influence of party over candidates and voters.Is one measure of the success of an electoral systemfor the upper house the fact that it produces apartisan majority that is opposed to the one in theLegislative Assembly?

5.3 Other Aspects of the Electoral System

There are a range of other issues that can be raisedabout the details of our electoral system. Some ofthese are:

• It is compulsory for all Australian citizensaged 18 years or over, who have a fixedaddress, to enrol and vote in all State electionsand referenda.

• An election is called when the Governorreceives written advice from the Premier todissolve Parliament.

• Any candidate can apply to the ElectoralCommissioner to have the name of a politicalparty printed next to their name on the ballotpaper.

• A voting ticket (for the Legislative Council)is a written statement of a particular order ofpreferences provided by a candidate orgroup tothe Electoral Commission to assist an elector.A properly lodged ticket allows the voter toplace only a number one in a ticket votingsquare on the ballot paper (ie the left hand sideof the paper).

• Legislative Assembly ballots require electors tomark their preferences against all the candidateson the ballot paper. Legislative Council ballotsgive electors the choice of either marking a ‘1’against their party of choice above the line, ormarking their preferences against all of thecandidates on the ballot paper.

• Voting is compulsory in all State Parliamentaryelections and referenda. Following the scanningof the electoral rolls, all those electors whoappear to have failed to vote are sent a noticeasking them to explain why. The returnedreasons are then assessed, and penalties

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imposed where required. A similar procedure isadopted for those electors who appear to havevoted twice (multiple voters).

• In the case of the death or resignation of aMember of the Legislative Assembly a by-election is held. In the case of the LegislativeCouncil a full recount of the ballots from theprevious election is conducted. Theprocedures for a general election apply forall by-elections.

Important Issues:

• Should it be compulsory to enrol, and/orcompulsory to vote?

• Should Parliament have a fixed term?

• Does printing the names of the politicalparties and groups on ballot papersincrease their influence over the electoralprocess?

• Should there be full or optional preferentialvoting for the Legislative Assembly?

• Who should bear the cost if a memberresigns during his/her term in Parliament?

• Are there any other issues upon whichcomment could be made?

6 AN IDEAL ELECTORAL SYSTEM?

There are many electoral systems used throughoutthe world. This suggests that there is no perfectelectoral system. However, commissions of inquiryin New Zealand 1986, Queensland 1990 andCanada 1991 identified features they thoughtessential for a fair and democratic electoral system.These features may provide a helpful guide forWestern Australians considering the issue.

These features include:

Free, Honest, Regular and Fair Elections.Elections should be by secret ballot so thatvoters should not be answerable for thechoices they have made, either publicly orprivately. There should be no coercion ofvoters. Elections should be held at regularintervals since the representatives are then keptanswerable to the electorate. To ensure thatelected leaders pay attention to the wishes ofvoters, it helps if candidates or partiescompete with one another for the voters’support - hence elections should becompetitive. In the interest of fairness, eachperson should have equal power and thus onlyone vote.

Adequate Representation for a Wide Varietyof Interests. The electoral system should try toensure that the opinions of diverse groups andinterests are represented to the maximumextent compatible with the operation of goodgovernment.

A Simple Voting System. The voting systemoperating within the electoral system should besimple and easy to understand.

Fairness Between Political Parties. Whenthey vote at elections, voters are primarilychoosing between alternative political parties.In the interests of fairness and equality,therefore, the number of seats gained by apolitical party should be proportional to thenumber of voters who support that party.

Effective Government. The electoral systemshould facilitate governments meeting theirresponsibilities. Governments should have theability to act decisively when it is appropriateand there should be reasonable continuity andstability both within and between governments.

Legitimacy. The electoral system must havepopular acceptance. If the voters do notendorse the system and its procedures as fairand reasonable, elected governments cannottrade on their legitimacy. (Queensland,Electoral and Administrative ReviewCommission, 1990: Volume 1: 6)

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Important issues:

• Are these features in fact necessary for afair and democratic electoral system?

• How will these features be achieved orimplemented in Western Australia?

• Will these features result in the preventionof corrupt, illegal or improper behaviourin the public sector?

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REFERENCES

Bennett, S. (1992) Affairs of the State Politics inthe Australian States and Territories Sydney:Allen & Unwin

Black, David (1991) Legislative Council ofWestern Australia: Membership Register, ElectoralLaw & Statistics 1890-1989 (Second Edition)Perth: Parliament of Western Australia

Canada, Royal Commission on Electoral Reportingand Party Financing (1991) Report Ottowa

Courtney, J.C., P. MacKinnon and D. E. Smith(editors)(1992) Drawing Boundaries:Legislatures, Courts and Electoral ValuesSaskatchewan: Fifth House Publishers

Davis, S. R. (1983) ‘What Price Upper Houses inAustralia?’ in Reid, G. S. (editor) The Role ofUpper Houses Today: Proceedings of the FourthAnnual Workshop of the Australasian Study ofParliament Group University of Tasmania Press

Groot, Murray (1985) ‘Electoral Systems’ inAitkin Don (editor) Surveys of Australian PoliticalScience Sydney: George Allen & Unwin

Haber, E. W., B. Musidlak and J. F. H. Wright(1981) ‘Electing a Representative House’Australian Quarterly 53 (1) 46-55

Hanks, Peter (1994) Australian ConstitutionalLaw Materials and Commentary (Fifth Edition)Sydney: Butterworths

Jaensch, Dean (1985) ‘The Bjelke-mander’ inPatience, Allan (editor) The Bjelke-PetersenPremiership 1968-1983: Issues in Public PolicyMelbourne: Longman Cheshire

Mandy, John and David Black (1990) WesternAustralian Parliamentary Handbook Perth:Parliament of Western Australia

May, John D. (1975) ‘Rural Over-Representation:Pros and Cons in Recent Australian Debate’Journal of Commonwealth & Comparative Politics13: 132-145

McKinnon, Don (1988) ‘ProportionalRepresentation in Theory and Practice’ LegislativeStudies 3(1): 21-24

New Zealand, Royal Commission on the ElectoralSystem (1986) Towards a Better DemocracyWellington: New Zealand Government Print

Pendal, P. (1983) ‘The Western Australian UpperHouse - A Perspective’ in Reid, G. S. The Role ofUpper Houses Today: Proceedings of the FourthAnnual Workshop of the Australasian Study ofParliament Group University of Tasmania Press

Pocklington, T. C. (1994) RepresentativeDemocracy An Introduction to Politics andGovernment Toronto: Harcourt Brace & Co

Queensland, Electoral and Administrative ReviewCommission (EARC)(1990a) Issues Papers - TheAppendixes Brisbane

Queensland, Electoral and Administrative ReviewCommission (EARC)(1990b) The Report(Volume 1) Brisbane

Rydon, Joan (1988) ‘Electoral Reform andParliament’ Legislative Studies 3(1): 33-37

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportPart I (Volumes 1-6): Part II, Perth

Western Australia, Task Force on Aboriginal SocialJustice (1994) Report of the Task Force (Volume 1& 2) Perth

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CASES

Australia (Attorney-General) v Commonwealth(1975), 135 C.L.R. 1, 50 A.L.J.R. 279.

Dixon v British Colombia (Attorney General) 59D.L.R. (4th) 247.

Ref re: Electoral Boundaries Commission Act, ss14, 20 (Sask) 81 D.L.R. (4th) 16.

LEGISLATION

Acts Amendment (Electoral Reform) Act 1987

Constitution Act 1889

Electoral Act 1907

Electoral Act 1918 (Cwlth)

Electoral Act 1992 (Qld)

Electoral Distribution Act 1947

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Notes:

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guarantees freedom of speech in Parliament. Itprovides that a statement made in Parliament oughtnot be 'impeached or questioned in any Court orplace out of Parliament'. A broad interpretation ofthis provision may prohibit proceedings inParliament being questioned in a court or like placeand that may be inconsistent with the rights ofcitizens to be governed in an open and accountablemanner.

The initial task for the Commission is to examinethe operation of this provision and of theParliamentary Privileges Act 1891 with a view topermitting proceedings in Parliament to bequestioned in a court or like place while stillpreserving the principle of free speech inParliament.


SUBMISSIONS


FORMAT






PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if and tothe extent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of Parliament.The Commission may also inquire into othermatters it considers relevant to the prevention ofcorrupt, illegal or improper conduct in the publicsector.




This paper deals with Specified Matter 19, relatingto the operation of parliamentary privilege andfreedom of speech.

Under the Parliamentary Privileges Act 1891, theprivileges of the Western Australian Houses ofParliament are determined by reference to thepowers, privileges and immunities enjoyed by theEnglish House of Commons. Imported with that isarticle 9 of the Bill of Rights 1689 which

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CONTENTS

1 INTRODUCTION

1.1 Fundamental Rights1.2 Principle of Free Speech1.3 Origin

2 PARLIAMENTARY PRIVILEGE INWESTERN AUSTRALIA

2.1 Constitution Act2.2 Parliamentary Privileges Act2.3 Other Acts2.4 Immunity2.5 WA Royal Commission Impasse

3 PARLIAMENTARY PRIVILEGEAND JUDICIAL PROCEEDINGS

3.1 The Courts and Privilege3.2 The Justice Murphy Trials3.3 Federal Parliamentary Privileges Act

19873.4 Arguments for Change3.5 Arguments against Change

4 SUMMARY

REFERENCES


CONTENT








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1 INTRODUCTION

1.1 Fundamental Rights

Interest in parliamentary privilege as a subject isprimarily confined to parliamentarians, lawyers andacademics. To a large extent, discussions about itspurpose and relevance have not surfaced in thepublic domain, except under extraordinarycircumstances such as the recent jailing of BrianEaston. This has shrouded parliamentary privilegein mystery, obscuring its purpose in legal andabstract terms. Nevertheless, parliamentaryprivilege affects everybody, influencing suchfundamental rights as our freedom of speech, andour right to be governed in an open and accountableway.

1.2 Principle of Free Speech

Freedom of speech is regarded as a fundamentalright in a parliamentary democracy. In Australia,freedom of political speech is recognised by theHigh Court as being implicit in our State andFederal constitutions. For citizens, freedom ofspeech is limited by the laws of defamation, but forelected representatives speaking in parliament, thereis no legal restriction on what may be said. This isto enable the Parliament to carry out its role ofscrutinising the operation of the government of theday, and inquiring into matters of public concern.Closely allied to this is the freedom of the press,and the extension of parliamentary privilege tocover reports of the proceedings of parliament.

1.3 Origin

Parliamentary privilege has a tradition reachingback through several hundred years of Englishpolitical history, long before the establishment ofthe Western Australian Parliament. It arose fromthe struggle waged by the House of Commons toestablish its authority relative to the Crown. Thecurrently accepted tenet of freedom of speech inparliament was then nonexistent.

This struggle was resolved in the United Kingdom,after much conflict, in 1689 with the passage of theBill of Rights. Article 9 of the Bill declares that:

the freedom of speech and debates or proceedingsin Parliament ought not to be impeached orquestioned in any court or place out ofParliament. (Erskine May, 1989: 73)

and further:

The privilege was clearly and widely established,in both Houses, and was largely protected fromoutside interference, whether by the Crown intenton stifling political initiatives or ‘indecorous’criticism, or by the courts, as in 1629. Theexclusive jurisdiction of words spoken or acts doneas proceedings in Parliament was now entrustedby law to Parliament and to no other body.(Erskine May, 1989: 73-74)

In the United States of America, the immunity ofelected representatives from questioning in thecourts, and immunity from civil arrest, is writteninto the so-called ‘Speech or Debate’ clause of theUnited States Constitution. In Westminster-styleparliaments, the term parliamentary privilege isshorthand for those immunities and powersessential to the inquiry and legislative functions ofparliament. They exist to enable parliaments tooperate without interference.

2 PARLIAMENTARY PRIVILEGE INWESTERN AUSTRALIA

2.1 Constitution Act

The immunities and powers conferred byparliamentary privilege were consideredfundamental in Western Australia at the time ofself-government and written into s.36 of theConstitution Act 1889:

36. It shall be lawful for the legislature of thecolony, by any Act to define the privileges,immunities and powers to be held, enjoyed, andexercised by the Legislative Council andLegislative Assembly, and by the members thereofrespectively. Provided that no such privileges,immunities, or powers shall exceed those for thetime being held, enjoyed, and exercised by theCommons House of Parliament, or the membersthereof.

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2.2 Parliamentary Privileges Act

In 1891 the Western Australian Parliament enactedthe Parliamentary Privileges Act. It is through thisAct that article 9 of the Bill of Rights comes toapply to our system of government. Section 1 of theParliamentary Privileges Act 1891 develops thepower conferred by s.36 of the Constitution Act1889 and maintains that the privileges of theParliament were to be ‘the same as are, at the timeof passing of this Act, or shall hereafter for the timebeing be held, enjoyed and exercised by theCommons House of Parliament of Great Britain.’It is generally held that this provision ties theimmunities and powers of the Western AustralianParliament to the current practice of the House ofCommons.

2.3 Other Acts

Other legislation which is relevant to the immunitiesof Parliament includes the Parliamentary PapersAct 1891 and s.351 of The Criminal Code. TheParliamentary Papers Act 1891 extends protectionfrom prosecution for defamation and the like tothose persons printing and publishing proceedingsin Parliament by order of the House. Section 351(3)of The Criminal Code also provides absoluteprotection in this regard. This is as important forthe guarantee it provides for record keeping, and thefree dissemination of proceedings in Parliament, asit is for the protection of the individuals involved.Section 351 of The Criminal Code provides for theabsolute protection of a member of Parliamentagainst defamation by the publication of anydefamatory matter in the course of a speech madein Parliament. Similarly, a person who presents apetition to Parliament does not incur liability fordefamation by the publication to Parliament of anydefamatory matter in the petition.

2.4 Immunity

The two Houses of the Western AustralianParliament possess the immunity of their debatesand proceedings from any inquiry or any action,civil or criminal (Evans, 1986a: 6). The followingsection outlines how this immunity impinged uponthe investigations of the Western Australian RoyalCommission into Commercial Activities of

Government and Other Matters (WA RoyalCommission, 1992).

2.5 The WA Royal Commission Impasse

During the course of its inquiries, the RoyalCommission requested Parliament for permission tomake use of its records of proceedings inquestioning witnesses. Relying on article 9 of theBill of Rights the Presiding Officers of both Housesof the Western Australian Parliament informed theRoyal Commission that it was obliged to pursue itsinquiry without reference to proceedings in eitherHouse or any committee of the Parliament (WARoyal Commission, 1992: I (1) 1.6.74).

In Part II of their report, the Royal Commissionersstated:

Lest we be misunderstood, the Commission makesit quite clear that it accepts that members ofParliament and those appearing before it, and itscommittees, should be entitled to freedom ofspeech, and that what is said in Parliament bythem should not itself be actionable at law.Subject to that important protection, however, theCommission believes it to be desirable thatproceedings in Parliament be open to question in acourt or like proceedings. Indeed, we are of theview that the present construction of that portionof Article 9 of the Bill of Rights is fundamentallyinconsistent with the right of all citizens to subjecttheir parliamentary representatives to scrutiny,and to be governed in an open and accountablemanner.

Accordingly, the Commission recommendsthat:

The Commission on Government examine theParliamentary Privileges Act 1891 with a view topermitting proceedings in Parliament to bequestioned in a court or like place whilepreserving the principle of free speech inParliament. (WA Royal Commission, 1992: II5.8.7)

Subsequently, this was listed as Specified MatterNo. 19 in the Schedule to the Commission onGovernment Act 1994.

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3 PARLIAMENTARY PRIVILEGE ANDJUDICIAL PROCEEDINGS

3.1 The Courts and Privilege

Although the generally accepted view is thatproceedings in Parliament cannot be questioned orcross-examined in a court or like place, such as aRoyal Commission hearing, there are still areas ofuncertainty:

After some three and a half centuries, theboundary between the competence of the lawcourts and the jurisdiction of either House inmatters of privilege is still not entirely determined.There is a wide field of agreement on the natureand principles of privilege, but the questions ofjurisdiction which occasioned furious conflict inthe past - usually between the Commons and thecourts but at times between the two Houses - arenot wholly resolved. (Erskine May, 1989: 145)

In relation to this issue, concern over the growingpower of the judiciary in Australia was expressedby the late Professor Gordon Reid. Based on thetraditional separation of powers, parliament and thejudiciary have always operated independently ofone another. However, this division could beblurred if the courts, which Reid warns are the‘least democratic component of our institutionalarrangements’ (1980: 12), were allowed tocomment on, or even determine the veracity of,statements made in parliament.

Generally, the Western Australian Parliament’sresponse to any challenge to its privilegeimmunities has been to ‘leave-it-alone’.Commenting on a Royal Commission impasse witha member of Parliament in 1948, Okely and Blacknoted:

Parliament for its part followed what has becomethe time-honoured practice in such cases of simplyaffirming its privilege while not entering intopublic debate on the actual extent of its privilege.(1991: 401)

3.2 The Justice Murphy Trials

The trials of Justice Murphy in the Supreme Courtof New South Wales in 1985-86, provide an insight

into a conflict between the Federal Parliament andthe judiciary over the application of article 9.

Two Select Committees of the Senate inquired intothe conduct of Justice Murphy, a High Court Judge.As a result of evidence given to the second of thecommittees, the Commonwealth Director of PublicProsecutions pursued charges against JusticeMurphy.

The first trial was held before Justice Cantor inmid-1985. Counsel appearing for the President ofthe Senate argued that article 9 clearly preventedthe cross-examination of witnesses on evidence theyhad provided to the Senate committee. In a narrowinterpretation of article 9, Justice Cantor disagreedwith this view. He ruled that a breach of article 9would only occur if there was some ‘adverse effectflowing from the cross-examination ... upon thefreedom of speech or upon debates in Parliament orupon proceedings in Parliament’(Evans, 1986b: 24).

In the second trial of Justice Murphy held beforeJustice Hunt, counsel appearing for the President ofthe Senate submitted that witnesses should not becross-examined on evidence they had given to aSenate committee, and that the ruling of JusticeCantor on the issue was wrong. Justice Huntrejected counsel’s argument and the ruling ofJustice Cantor. He ruled that article 9 only meantthat the proceedings of Parliament could not be thesubject of criminal or civil actions (eg. adefamation suit) themselves, but could be used asevidence of offences committed elsewhere.

This was an even narrower reading of article 9 thanJustice Cantor’s, and significantly reduced theimmunities of the Federal Parliament. Thisinterpretation would allow almost open ambit in thecourts for the questioning of most proceedings inParliament:

(Justice) Hunt’s judgement would so restrict thatessential parliamentary freedom to debate and toinquire as to virtually destroy it. If the judgementwere allowed to stand Parliament would be indanger of becoming a cowed institution. (Evans,1987: 29)

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3.3 Federal Parliamentary Privileges Act 1987

In 1984, a Joint Select Committee of the FederalParliament conducted a comprehensive review ofparliamentary privilege. The ParliamentaryPrivileges Act 1987 was enacted as a statutorydeclaration of the traditional interpretation of article9 as a result of the judgements in the Murphy trials.The Act included the changes recommended by theSelect Committee, but with a number of significantmodifications (Evans, 1988a: 30).

The effect of the judgement [from the Murphycase] was substantially reversed by the AustralianParliamentary Privileges Act 1987 which ingeneral restored on a statutory basis the previousunderstanding of the meaning of article 9, defined‘proceedings in Parliament’ and made certainprovisions regarding the extent to which courtsmight concern themselves with such proceedings.(Erskine May, 1989: 159-160)

Other provisions of the Act include:

• the power to fine for offences against theParliament;

• protection of witnesses appearing before aHouse or Committee;

• limited immunities for members from arrestover civil matters; and

• protection from defamation actions forthose publishing fair and accurate accountsof proceedings in Parliament.

The Act is not a codification of all privilegesavailable to Parliament. Section 5 of the Act, forexample, ensures that all privileges of the House ofCommons continue to operate in the AustralianParliament according to s.49 of the Constitution.This ensures, as far as possible, the Act builds onthe privileges of Parliament, rather than limitingthem. A more detailed discussion of theimplications of the Federal Act for argumentsagainst any change to the traditional interpretationof article 9 is presented in the section 'Argumentsagainst Change'.

3.4 Arguments for Change

Article 9 came into existence to protect theParliament (representing the people) from thearbitrary power of the executive (the Crown). Threehundred years later the proponents for change claimthat article 9 is used by the Parliament to protect itsmembers from public scrutiny.

The Royal Commission stated:

From the outset, it was apparent that a properperformance of the task would oblige theCommissioners, inter alia, to scrutinise thestatements and conduct of persons who weremembers of Parliament at material times. It wasapparent, also, that because certain of the terms ofreference had already been the subject of scrutinyby committees of the Parliament, the work of theCommission would be facilitated if regard was hadto the testimony of persons called as witnesses bythose committees. (WA Royal Commission, 1992: I(1) 1.6.67)

The Royal Commission outlined arguments forallowing such scrutiny to occur (WA RoyalCommission, 1992: II). These can be summarisedas follows:

• Article 9 has no application to publicdiscussion of what has been said inParliament. Why should a distinction bedrawn between the questioning in a court ofwhat is said in Parliament, and thequestioning of the same conduct outside acourt?

• Witnesses to a parliamentary committee andmembers of Parliament are more likely totell the truth if they know there is a prospectthat what they say may later be challengedelsewhere, than if they know they areprotected from such a challenge.

• Statements made in Parliament should notbe treated, for purposes associated withcourt and like proceedings, as if they werenever uttered. To provide such immunity islikely to encourage, or at least facilitate, adisregard for the truth by those to whom theprotection is given.

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• If it is understood by members ofParliament or persons appearing before aparliamentary committee that they may becalled to account for their parliamentarystatements at a later time, they are morelikely than not to speak honestly, althoughno less freely.

• To suggest otherwise, is to equate thefreedom of speech in Parliament with theright to be disingenuous. This would befundamentally inconsistent with the right ofall citizens to be governed in an open andaccountable manner.

Proponents of change such as Sir Clarrie Harders(1993: 112) believe the traditional response, basedon article 9, does not accord priority to theadministration of justice. Harders also makes thefollowing points:

• Contemporary use of article 9 is far widerthan originally provided for. It extends tothe protection of non-members and even tothe protection of non-members who are notthe subject of any legal challenge orproceedings, but who were witnesses givingevidence against other persons.

• Witnesses who are not the subject of anycourt proceedings and are not otherwise atrisk of prosecution or civil suit because ofwhat they have said to a parliamentarycommittee, should not be protected by thearticle 9 immunity.

• The difficulty of a fair trial for the accusedif cross-examination cannot take place. It isabsurd if such evidence is freely referred toin the media, but is not available for the useof an accused person in the defence ofcriminal charges.

• Taken literally, article 9 would deny thecourts the right to inquire into anythingwhatsoever that had been said or done inparliamentary proceedings by members, butthe same protection is not available to awitness who is not a member who givesfalse evidence on oath to a parliamentarycommittee and who may be charged and

prosecuted in the courts (Harders,1993:109-142).

3.5 Arguments against Change

It can be argued that proponents of change losesight of the real purpose of the immunity grantedunder article 9. This immunity is not for theevasion of defamation laws, but to ensureParliament can properly fulfil its inquiry functionand hold the executive accountable.

Every community, to be well run, requires someinstitution to energetically and thoroughly inquireinto matters of public concern and to rigorouslyexamine the laws and proposed laws andmeasures. That parliament has largely abandonedthese responsibilities and left them to the ad hocattention of the press, ‘expert’ bodies and royalcommissions is no doubt due to the complexities ofmodern society, which simply overwhelmed thenineteenth century parliament and prevented itfrom performing those functions. There are ways,however, in which parliaments could start toreclaim those functions, and if this is done aproper appreciation of parliamentary immunitiesand powers will be important. (Evans, 1986a: 9)

There has been a reluctance by parliaments whichhave inherited their privilege law from Britain tolegislate for parliamentary privilege. Where suchlegislation exists, it generally purports to codifyexisting traditional understandings (see 2.1; 2.2).One reason cited for this reluctance is the danger ofunduly restricting the powers and immunities ofHouses of Parliament by tying them to preciselegislative terms (Evans, 1988a: 21).

Evans contends that the experience of the FederalParliament in enacting parliamentary privilegelegislation demonstrates, in part, this reluctance tobe well-founded. ‘The framing of the legislationdrew attention to a number of difficulties which arenot easily statutorily solved’ (Evans, 1988a: 22).By implication, ‘reform style’ legislation willpresent similar (or greater) difficulties.

In a comprehensive analysis of the FederalParliamentary Privileges Act 1987, Evansdiscusses some of the difficulties of trying to putexisting statutory and non-statutory prescription of

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the law and practice of parliamentary privilege intodetailed written form. His assessment regardings.16 of the Act (Parliamentary privilege in courtproceedings) is of particular relevance. Thefollowing is a summary of Evans’ analysis:

• The statutory declaration of theparliamentary view of freedom of speechwas accomplished in several stages. Thefirst, s.16(1), makes it clear that theAustralian Houses possessed the privilegeof freedom of speech in the terms of the Billof Rights. The next, s.16(2), defines thescope of the expression ‘proceedings inparliament.’ The most important provision,s.16(3), attempts to indicate what is meantby ‘impeached or questioned’. Thisprovision attempts to indicate the wideroperation of article 9 and to draw the linebetween the proper and improper admissionof evidence of parliamentary proceedings.

• Section 16(4) prevents absolutely theadmission in court proceedings of anyevidence relating to parliamentary evidencetaken in camera. Given that s.16(4) mayhave prevented courts examiningparliamentary proceedings in theinterpretation of a statute, or of resolvingconstitutional questions arising fromdisagreements between the two Houses,s.16(5) was included to overcome this.

• Section 16(6) provides that parliamentaryproceedings may be examined in court inrelation to an offence concerning theparliamentary proceedings. This illustratesa difficulty. By enacting criminal remediesto protect its proceedings, the Parliamenthas, unwittingly made an inroad on theimmunity of its proceedings fromquestioning in the courts.

At the time the Bill was presented, some memberswere concerned that it was too widely drafted, andmight unduly restrict the rights of litigants anddefendants. While there was no thought of speechesby members in Parliament being subjected to anyexamination in court, consideration focussed onwhether litigants and defendants should be able tomake limited use of evidence given before

parliamentary committees for the purposes of theircourt proceedings. This would only be to the extentof allowing cross-examination in court for thepurpose of showing that the person’s parliamentaryand court evidence was inconsistent and that theperson’s court evidence was therefore unreliable.Normally a witness can be cross-examined inrelation to inconsistent prior statements, andevidence of inconsistent prior statements can betendered. This question, Evans claims, wascarefully considered by members in each House,who concluded that it would be impossible to makesuch an exception without undermining the wholeprinciple of the Bill.

Given that the proposed exception clause wassimilar to the waiver requested by the RoyalCommission, the arguments in support of theconclusion reached by the Federal Parliament areworthy of note. Evans outlines them thus:

• Such an amendment would draw adistinction between evidence given before aparliamentary committee and otherproceedings in Parliament, such as speechesor questions by members. An anomaloussituation would arise wherebyparliamentary evidence would be subject toexamination in court but other proceedingswould not.

• If one party in an action were allowed toseek to undermine the evidence of a witnessby using the witness’s parliamentaryevidence, as a matter of fairness the otherparty in the proceedings would have to beallowed to try to rebut that undermining byfurther use of the parliamentaryproceedings. This could lead to claims ofmisleading or biased questioning by theparliamentary committee, or that thewitness was not given proper opportunity torespond to questions put in the committee.This would open the way to the veryimpeaching and questioning ofparliamentary proceedings which it is theaim of article 9 and the legislation toprevent.

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• The whole purpose of the legislation beingto prevent people being attacked on thebasis of their participation in proceedings ofParliament, it was considered unjust andundesirable that witnesses should be subjectto attack because they had previously givenevidence to a parliamentary committee,perhaps under compulsion.

• Parliamentary committees are not bound bythe rules of evidence. A parliamentarywitness, again perhaps under compulsion,may be asked to express the witness’sopinions, feelings, suspicions and doubts,and to give self-incriminating evidence. Itwould be unfair to allow a witness to besubsequently attacked in court on the basisof this evidence, which would not otherwisebe admissible in the court proceedings.

• Statements made in the course ofparliamentary proceedings might beconsidered to be in the same category asstatements subject to other forms ofprivilege which are recognised by the law.The obvious example being legalprofessional privilege (Evans, 1988a:22-26).

In relation to other provisions of the FederalParliamentary Privileges Act Evans comments:

When the task was undertaken of putting therecommendations of the Select Committee intostatutory form, difficulties with therecommendations were discovered and they weresignificantly modified in the Bill as introduced.The difficulties with the Committee’srecommendations were overcome in ways ..., andin the process the law changed rather moreradically than the committee contemplated.(Evans,1988b: 41)

4 SUMMARY

This discussion paper provides an account of thearguments for, and against, permitting proceedingsin Parliament to be questioned in a court or likeplace. Any change contemplated must nevertheless

preserve the freedom of speech that is at the core ofour parliamentary democracy.

Whilst there is a spectrum of opinion with regard tothis issue, there are two broad positions. First,commentators such as Harders argue that allowingproceedings to be questioned in a court willfacilitate due processes of justice. Further, theRoyal Commission suggests such a change wouldpromote open and accountable government.

Commentators, such as Evans, however, claim thatany change would impinge on the sovereignty ofParliament. He argues that even change aimed atpreserving the spirit of article 9 can unintentionallyrestrict the privileges of Parliament.

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REFERENCES

Erskine May (1989) Parliamentary Practice (21stedition) London: Butterworths

Evans, Harry (1986a) ‘’Privilege’: What toRemember and What to Forget’ Legislative Studies1(1): 5-9

Evans, Harry (1986b) ‘Parliamentary Privilege:The Reasons of Mr Justice Cantor - An Analysis’Legislative Studies 1(1): 24-26

Evans, Harry (1987) ‘Parliamentary Privilege:Reasons of Mr Justice Hunt - An Analysis’Legislative Studies 2(1): 24-29

Evans, Harry (1988a) ‘Parliamentary Privilege:Legislation and Resolutions in the AustralianParliament’ The Table 56: 21-36

Evans, Harry (1988b) ‘Parliamentary Privilege:Changes to the Law at Federal Level’ University ofNew South Wales Law Journal 11(2 ): 31-47

Harders, Sir Clarrie (1993) ‘ParliamentaryPrivilege - Parliament versus the Courts: Cross-examination of Committee Witnesses’ TheAustralian Law Journal 67 (Feb): 109-142

Okely, Bruce and David Black (1991)‘Parliamentary Privilege in Western Australia’ inDavid Black (editor) The House on the Hill: AHistory of the Parliament of Western Australia1832-1990 Perth: Parliament of Western Australia

Reid, G. (1980) ‘The Changing PoliticalFramework’ Quadrant January-February: 5-15

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportPart I (Volumes 1-6); Part II, Perth

LEGISLATION

Constitution Act 1889The Criminal Code Act 1913Parliamentary Papers Act 1891Parliamentary Privileges Act 1891Parliamentary Privileges Act 1987 (Cwlth)

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PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if and tothe extent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of parliament.The Commission may also inquire into othermatters it considers relevant to the prevention ofcorrupt, illegal or improper conduct in the publicsector.




This paper deals with Specified Matter 9concerning the terms that would be appropriate forlegislation to establish a separate and independentarchives authority for the State.

Government agencies record their businessactivities in a variety of ways using different typesof records. The sort of record is not necessarilyimportant; what is important is that a record iscreated of each transaction, that the agencymanages it properly and that it is not destroyed

without having been assessed by people qualified todecide whether or not the record should be keptpermanently. Records that are kept permanently arecalled archives. Archives are important becausethey provide evidence that an activity has occurredas well as information about people, organisationsand events. Archives also have great importance incontributing to the historical memory of the State.

This paper identifies some of the issues which maybe relevant to this topic and provides informationand background on those issues. The issuesidentified are not intended to be an exhaustive listand submissions may address other relevant issues.


SUBMISSIONS

The Commission welcomes all submissions andrecognises that people may have to make a specialeffort to prepare them. If people need advice or helpwith their submissions, we invite them to telephone us.

The following are guidelines only. They aredesigned to assist members of the public wishing tomake a submission. Please attempt a submission,whether or not it conforms to the guidelines.

FORMAT

Please ensure, as far as possible, that submissions:

(a) are legible, and preferably machine-typed withsingle line spacing;

(b) use headings and sub-headings;(c) have numbered pages;(d) clearly identify the author by showing name,




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CONTENT


1. SUMMARY – this should be a very briefoutline of the specific matter you areaddressing, your concerns and what you areproposing. Clearly state which SpecifiedMatter you are addressing.

2. SUBMISSION/ARGUMENT – in this sectionyou can expand on your concerns about theissues that you are addressing, outlining howyou will back this up with factual material andargument which support your views.

3. SUPPORTING MATERIAL – here youpresent any material, item by item, referring tohow each item supports your argument. Thismay take the form of examples of actual events,copies of documents, or any other evidencerelevant to your submission.

4. RECOMMENDATIONS – you need toclearly present your recommendationsaddressing the concerns identified by yoursubmission. They should be listed in order ofimportance and numbered.



ISBN 0 7309 6905 3Copyright Commission on GovernmentAugust 1995

CONTENTS

1 INTRODUCTION

1.1 The Role of Records Managementand Archives in PublicAdministration


2.1 Royal Commission2.2 Relevant Legislation

2.2.1 Library Board of WesternAustralia Act 1951 - 1983

2.2.2 Public Sector Management Act1994

2.2.3 Criminal Code Act 19132.2.4 Local Government

2.3 Current Structure of State PublicRecords Office

2.4 Reviews of Public Record Keepingand Archives Systems in WesternAustralia

2.5 Criticisms of the Current System2.6 A Proposal for New Public Records

Legislation for Western Australia2.7 Comparisons with Other

Jurisdictions


3.1 Public Offices for the Purposes ofArchives3.1.1 Ministerial Records3.1.2 Cabinet Records3.1.3 Viceregal Records3.1.4 Records of Royal Commissions

and Other Inquiries3.1.5 Parliamentary Records3.1.6 Electorate Records of Members

of Parliament3.1.7 Competitive Tendering and

Contracting3.2 What Constitutes a Public Record3.3 Technological Change3.4 Powers of Inspection of Public

Records3.5 Mandatory Archiving of Records3.6 Disposal of Records

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3.7 Who Should Set and MonitorStandards for Records Management

3.8 Penalties3.9 Reporting Arrangements3.10 Who Should Pay for the

Preservation of Public Records3.11 Access to Archives

3.11.1 Archival Periods3.11.2 Privacy3.11.3 Other Exemptions

3.12 Relationship Between Access UnderArchives Legislation and Freedom ofInformation Legislation

3.13 Ownership of Public Records3.14 Physical Location of Archives

4 SUMMARY

REFERENCES

LEGISLATION

APPENDIX 1

APPENDIX 2

APPENDIX 3

1. INTRODUCTION

Specified Matter 9 requires the Commission onGovernment to inquire into ‘the terms that would beappropriate for legislation to establish a separateand independent archives authority for the State’.This follows recommendation 20(a) of the RoyalCommission into Commercial Activities ofGovernment and Other Matters (the RoyalCommission), which stated:

A separate and independent archives authority beestablished, acting under its own legislation. (WA RoyalCommission, 1992: II 4.3.6)

This paper discusses the key issues concerningrecords management and archives. It alsosummarises the proposals put forward by theMinister for the Arts, the Hon. Peter Foss MLC, ina discussion paper titled New Public RecordsLegislation for Western Australia (Minister for theArts, 1994). That paper was circulated to interestedparties for comment, but was not widely advertisedinviting public comment.

Expressions used in this paper have the followingmeanings:

archives: those transactional records that are appraised ashaving continuing value. (Standards Australia, 1995: I 7)

electronic records: transactional records where informationis represented in a form suitable for retrieval, processingand communication by a digital computer. (StandardsAustralia, 1995: I 7)

ephemeral records (ephemera): records which areduplicates or have only short-term value to the organisationand little or no continuing administrative, fiscal, evidentialor historical value are said to be ephemeral. (Library andInformation Service of Western Australia, 1994: 10)

exempt: free from an obligation, especially one imposedupon others. (Allen, 1990: 409)

1.1 The Role of Records Management andArchives in Public Administration

Records ‘provide evidence of (an) activity.Incidentally, they also provide a rich source ofinformation about associated people, organisations,events and places’ (McKemmish, 1993: 4). TheRoyal Commission recognised that proper recordkeeping is necessary, both for effective

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accountability and because records form ‘anintegral part of the historical memory of the Stateitself ’ (WA Royal Commission, 1992: II 4.3.2).

The discipline of an effective records managementsystem, starting with the creation of a record andending in its proper archival storage or destruction,ensures that effective scrutiny of governmentactivity can take place. All institutions ofaccountability such as courts, auditors,commissions of inquiry and ombudsmen rely uponrecords to trace the events and transactions thathave occurred to determine whether such events andtransactions are in accordance with the law orcorrect procedures. If there are no records, or if therecords are incomplete, inaccurate, or unreliable,public confidence in the activities of government isdifficult to maintain. According to David Bearman‘Archives and records management share a simplegoal: providing for organisational accountability’(Bearman, 1993: 15).

However, this goal was not recognised in the earlydevelopment of archives authorities in Australia,which saw their role solely as being collectors andholders of records of permanent historical interest.

Whilst creating, selecting and maintaining recordsfor their historical context is still of greatimportance, there are broader issues concerning thelink between archives and accountability. Theseinclude:

• whether the archival authority should bedirectly responsible to parliament or indirectlythrough a department or a Minister;

• what records should be public records;

• standards for the creation or capture of recordsand their custody, management,preservation and destruction;

• how public sector records management rolesand responsibilities should be defined, assignedand discharged;

• whether there should be a mandatory periodafter which records must be assessed fortransfer to archives;

• whether the archival authority should havegeneral powers of inspection in regard to allpublic records;

• ownership of records once they have beenarchived;

• privacy issues;

• training;

• rules governing access;

• the impact of freedom of informationlegislation;

• where archives should physically be located;and

• how non-paper records should be managed.


2.1 The Royal Commission

Accountability processes may break down when anappropriate record is not created, when it isclassified or stored inappropriately, or when recordsare tampered with or destroyed withoutauthorisation. The Royal Commission ‘notedinstances both where official papers were lost,deliberately destroyed or removed by officials, andwhere a record of major decisions was not made.Such practices strike at the roots of responsiblegovernment’ (WA Royal Commission, 1992: II4.3.1). The abuse of public records was a recurringtheme during the Royal Commission:

The absence of effective public record keeping has doggedthis Commission in its inquiries. Records provide theindispensable chronicle of a government’s stewardship.They are the first defence against concealment anddeception. (WA Royal Commission, 1992: I (6) 27.2.7)

The Royal Commission cited many instances whereproper record keeping was not followed, forexample:

Over several weeks before Mr Burke’s retirement asPremier, four or five members of his personal staff wereengaged in removing material from departmental files and

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2.2.1 Library Board of Western AustraliaAct 1951 - 1983

The Library Board of Western Australia Act 1951-1983 (Library Board Act) was amended in 1974 togive the Library Board custody of state archivesand responsibility for the preservation of publicrecords in Western Australia. The main sections ofthe Act which set out these responsibilities are:

• Section 29, which requires the Board to adviseand assist public officers in matters of recordsmanagement, including the creation,maintenance, security and disposal of records;select for preservation non-current recordsnotified to the Board by public offices; acceptcustody and control of public records soselected and take all reasonable steps to securetheir preservation; and organise and arrange thestate archives in a proper manner for use.

• Section 30, which vests officers in charge ofpublic offices with responsibility formaintaining systems of records managementand for taking all action necessary for therecovery of any public records unlawfullyremoved from those offices; gives the officersauthority to destroy or dispose of public recordsin accordance with Retention and DisposalSchedules authorised by the Board and requiresthat before any such action occurs the officersmust notify the Board of the intention to destroyor dispose of the records.

The provisions of the Act apply to all departments,branches or offices of the Government of WesternAustralia, any public body, corporate orincorporate constituted pursuant to a statute ofWestern Australia, any council of a municipality orother body constituted pursuant to the LocalGovernment Act 1960 or any other local governingbody corporate or incorporate.

The Act makes no specific mention of ministerial orviceregal papers or the records of Cabinet,parliament, members of parliament, RoyalCommissions or other government inquiries. Norare there provisions for the preservation of recordsproduced by private sector organisations providingservices under contract on behalf of government.

destroying it. The task was major, involving hundreds offiles. It was described by one witness as a ‘mammoth job’.It was done after normal working hours on weekdays andon weekends. Records office staff were not consulted orinvolved.

In particular, two files on the casino indicated interferencewith pages torn out, folios renumbered and documentsstapled together. These documents may well have beenimportant to the inquiry into this and other terms ofreference. We note that all records of Government activitiesnecessarily form part of the official record of the State foraccountability and historical purposes. The deliberatedestruction of official records cannot be justified and thoseresponsible for authorising it deserve censure. (WA RoyalCommission, 1992: I (2) 8.19.34 - 8.19.35)

The Commission did not accept that no records, even of aminimal kind, were kept and so was left with theconclusion that they have either been mislaid ordeliberately destroyed. The suggestion that all the recordshad been mislaid was so inherently improbable as to leavethe Commission with no choice but to find that suchrecords as were kept had been deliberately placed beyondthe scrutiny of any monitoring authority. (WA RoyalCommission, 1992: I (2) 9.17.29)

The Royal Commission also detailed instanceswhere records disappeared (WA RoyalCommission, 1992: I (3) 10.35.15); where Cabinetrecords were not kept (WA Royal Commission,1992: I (4) 18.6.10); where Cabinet records wereinaccurately altered (WA Royal Commission, 1992:I (2) 8.19.41); and where Ministers, on leavingoffice, retained critical department files (WA RoyalCommission, 1992: I (3) 10.21.17).

Commissions and inquiries in other jurisdictionshave also noted instances where, either deliberatelyor through oversight, record keeping had been sopoor that it had been impossible to piece togetherthe reasons or motives for major public policy orexpenditure decisions.

2.2 Relevant Legislation

The first State Archivist was appointed to the StateLibrary in 1945. Although there has never been aseparate Act controlling the management of publicrecords in Western Australia, several statutes arerelevant.

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2.2.2 Public Sector Management Act 1994

Section 7(h) of the Public Sector Management Act1994 states that ‘proper standards are to bemaintained at all times in the creation, management,maintenance and retention of records’ in the publicsector. Section 29(1)(n) provides that the functionsof chief executive officers and chief employeesinclude the maintenance of proper records.

2.2.3 Criminal Code Act 1913

Section 85 of the Criminal Code Act 1913 statesthat any public officer who corruptly by act oromission falsifies, destroys, alters or damages anyrecord is guilty of a crime and is liable toimprisonment for three years.

2.2.4 Local Government

Local government authorities (LGAs) are subject tothe Library Board Act and to other legislation. Therecords created by LGAs range from town planningissues to the health and welfare of theirconstituents. These issues and the records createdconcerning them, are governed by numerous Actsand regulations. For example, regulation 12 of theBuilding Regulations 1989 states that ‘one copy ofevery drawing, plan, specification or calculationshall remain in the office of the Building Surveyoras a permanent record.’

2.3 Current Structure of State Public RecordsOffice

The relevant sections of the Library Board Act(ss 22 to 33) are administered by the PublicRecords Office of Western Australia, which is adirectorate of the Library and Information Serviceof Western Australia (LISWA). The two branchesthat carry out the functions of the directorate arethe Archives Branch and the Records ManagementOffice. The Director of the Public Records Office isresponsible to the State Librarian. It should benoted that until 30 June 1995 the Public RecordsOffice was called the State Archives.

A Standing Committee on Public Records wasestablished in 1991 as a sub-committee of theLibrary Board. It includes members with

professional expertise in records management andarchives, an academic historian and representativesof local government and the legal profession. Itsrole is to consider and recommend to the Boardproposals relating to the retention and disposal ofrecords.

2.4 Reviews of Public Record Keeping andArchives Systems in Western Australia

For some time there have been criticisms of theexisting legislative and administrative arrangementsfor public records management in WesternAustralia. Often such criticism has come fromprofessional archivists and record keepers, but therehave also been a number of reviews of the systemover the last decade that have identified aspects ofour records management system as beinginadequate. A list of these reviews is provided inAppendix 1.

2.5 Criticisms of the Current System

Possible deficiencies in the Library Board Actinclude the following:

(i) The definition of a ‘public record’:

• does not specifically include electronic,digitised or ephemeral records and is notsufficiently flexible to accommodate futuretechnological innovations that may have abearing upon modern records management;

• needs to be modified to include amechanism whereby ephemeral records thatdo not contain information of value can beidentified and destroyed;

• is not consistent with the definition of apublic record in the Freedom OfInformation Act 1992.

(ii) The definition of ‘public office’ is not draftedwidely enough to encompass all categories ofofficials.

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(iii) There are no provisions for:

• ensuring that management roles andresponsibilities for public sector records areclearly defined, assigned and appropriatelydischarged;

• permitting the archival authority to report toparliament the occurrence of any breachesof the legislation;

• issuing public records standards andguidelines nor the monitoring of compliancewith them;

• ensuring that public records must, at somestage, become state archives;

• preventing archived documents fromreverting to the possession of the originatingagency;

• penalties or other mechanisms for illegaldestruction or tampering with records orother breaches of the Act;

• requiring consultation with accountabilityagencies, such as the Auditor General, theOmbudsman, the Supreme Court, the PublicSector Standards Commissioner and theInformation Commissioner;

• an archival authority to have a general rightof access to all public records in thecustody of a public office; and

• statutory legislated right(s) of public accessto archives.

2.6 A Proposal for New Public RecordsLegislation for Western Australia

The discussion paper issued by the Minister for theArts in July 1994 proposed a new Act which would,amongst other things:

• create an independent Public RecordsCommission (PRC) to identify record keepingissues for which standards are needed, endorsesuch standards and monitor them for the publicsector. The PRC would be required to report

directly to parliament annually on public sectorcompliance with standards, and on an ‘asneeds’ basis when instances occurred whichcompromised the integrity of the public record;

• retain a Public Records Office (PRO) within theLISWA structure, headed by a director whowould be responsible to the State Librarian.The functions of the PRO would be similar tothose of the current Public Records Office, withthe additional requirement that the PRO woulddevelop standards and assist agencies toimplement those standards;

• provide penalties for destruction of records orotherwise compromising the public record;

• provide for compulsory transfer of records toarchival custody after a set period;

• provide a right for PRO staff to havereasonable access for inspecting public recordsheld by a public office, for public offices tohave access to records initiated by them andheld in the archives, and for the public to haveaccess to public archives; and

• expand the definition of a ‘public record’ toinclude ministerial records and the records ofroyal commissions and committees of inquiryand make specific provisions concerningelectronic records.

The existing LISWA reporting structure and thatproposed in the Minister for the Arts’ paper areshown in Appendix 2.

2.7 Comparisons with Other Jurisdictions

Reviews of the adequacy of archives systems havebeen undertaken in other jurisdictions. An extensivereview of archives legislation was conducted inQueensland by the Electoral and AdministrativeReview Commission in 1991/92.

Chris Hurley (1994), Chief Archivist in Victoria,recently developed a three generation model todescribe the characteristics of archives legislation inAustralia. McKemmish, in referring to this model,says:

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Until 1993, State Archives acquired the papers ofMinisters at the discretion of the individualMinister. In September 1993, the Premier issuedCircular To Ministers No. 39/93: Records DisposalGuidelines - Ministerial Offices, which stated that‘Records created in the course of a Minister’sministerial duties are public records’ and that theymust be transferred to the State Archives at the endof the ministerial term.

As ministerial records are subject to freedom ofinformation legislation, it would be consistent forthem to be included in the definition of a publicrecord for the purpose of archives legislation.Ministers, however, may conduct party politicalbusiness from within their ministerial offices.Records created for that purpose would not comeinto the category of ministerial papers.

Important Issues

• Should ministerial records be included inthe definition of public records in anynew archives legislation?

• Are there any kinds of ministerialrecords that should be exempt?

3.1.2 Cabinet Records

A detailed discussion of the records kept by Cabinetis found in part 2, ‘Cabinet Secrecy’ of theCommission on Government’s Discussion PaperNo. 1. In addition, the Commission’s report on thismatter will address issues concerned with Cabinetrecords.

Important Issues

• Should Cabinet records be included inany archives legislation?

• Which records of Cabinet should bearchived?

• How could rules for recordsmanagement be enforced upon Cabinet?

First generation acts are mainly concerned withestablishing archival authorities as ‘collectors and holdersof records of permanent historical interest’. The currentNSW, Queensland and SA acts are examples of firstgeneration acts, as is the WA act, although s 29 and 30introduce a provision which is more characteristic ofsecond generation acts. Second generation acts (theCommonwealth and Tasmanian acts, and through itsstandard setting - provisions, the Victorian Act) and bills(Queensland, NSW) regulate records management,mandate transfer and establish public access regimes.(McKemmish, (1995) : Review Report to COG)

A table showing features of current archives andpublic records management in other Australianjurisdictions is provided in Appendix 3.


3.1 Public Offices for the Purposes of Archives

As outlined in Section 2.2.1, there are certainpublic offices which are not clearly included in thecurrent Act’s definition of ‘public offices’. It couldbe argued that all public officials should fall withinthe scope of archives legislation. Additionally, allmatters concerning the business of publicadministration should be recorded and preserved foraccountability, heritage and future administrativereasons. As these records are funded from thepublic purse, it is argued that they should be publicproperty.

3.1.1 Ministerial Records

Whether ministerial records are subject to theprovisions of the Library Board Act is an issue thatachieved some prominence as a result of the RoyalCommission. As a former State Librarian noted:

Frequently ministers of the Crown, when asked aboutrecords of various transactions, told the Royal Commissionthat the records had been destroyed. The RoyalCommission did not accept statements that ministers hadexclusive personal property in ministerial files, although itmay have been doubtful whether or not the Public Recordsprovisions of the Library Board of WA Act applied to themi.e. that they had to be referred to the State Archives beforethey could be discarded. I do not necessarily agree thatministerial office files are exempt from the archivallegislation, but it is not an area that has ever been put to thetest. (Sharman, 1994: 199)

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3.1.3 Viceregal Records

There has been correspondence between theGovernors of Western Australia and the Crownsince the settlement of the colony, although this haslessened since the passing of the Australia Act in1986. This correspondence is an important sourceof historical information. There have been informalarrangements in force over the years for placingviceregal records into state archives.

The Commonwealth’s archives legislation refers tothe records of the Governor General in its definitionof Commonwealth institution, making these recordsexplicitly subject to some of the legislation’sprovisions.

Important Issue

• Should viceregal records be included inthe definition of public records?

3.1.4 Records of Royal Commissions andOther Inquiries

Commonwealth archives legislation states that therecords of royal commissions established by theCommonwealth are Commonwealth property, withcustody of the records being determined by theresponsible Minister. Under the legislation, a royalcommission may prohibit the publication of anydocument, but this does not affect public accessonce the document is available for archival access.

The Royal Commission (Custody of Records) Act1992 was passed specifically to deal with therecords of the WA Royal Commission after itsinvestigations had concluded. The Act wascontroversial as it gave the Royal Commission widediscretionary powers for the disposal anddestruction of records. The Royal Commission(Custody of Records) Amendment Act 1992modified these powers to destroy records, bymaking them subject to the Library Board Act.

Important Issues

• Should the records of royal commissionsand committees of inquiry be subject tothe same terms of retention, disposal anddestruction as most other publicrecords?

• Should special conditions regardingpublic access be allowed?

• Should information that has beenprovided in confidence to suchcommissions or committees be exemptfrom access or would the passage oftime make such material less sensitive?

3.1.5 Parliamentary Records

Published records of the Legislative Assembly andthe Legislative Council from the 1890s to 1965 arein the possession of the Public Records Office. Thearrangements for the transfer of these records toarchives were informal and have lapsed in recenttimes.

It may be in the public interest that the records ofthe legislature are preserved. It could be argued thatplacing parliamentary records into the PublicRecords Office, ie under the control of theexecutive arm of government, is contrary to theprinciple of the separation of powers. However,court records are currently kept by the PublicRecords Office. There may also be parliamentaryprivilege issues that make it inappropriate forparliamentary records to be deposited and availablefor archives access.

The Archives Act 1983 (Cwlth) has a provision formaking regulations to extend the Act’s applicationto records of the Parliament following consultationwith the relevant presiding officers. Theseregulations were gazetted on 11 May 1995.

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Important Issues

• Should an independent archivesauthority be responsible for keeping allpublic records irrespective of theirsource?

• Should there be separate archivessystems for each arm of government?

• Should archives legislation extend toparliamentary records?

3.1.6 Electorate Records of Members ofParliament

Currently, members of parliament may lodge theirelectorate records with LISWA. However, they areclassified as private records and, with effect from 1July 1995, all such records are lodged in theJ S Battye Library of West Australian History(Battye Library) rather than the Public RecordsOffice. The Battye Library collects private, asopposed to public, records. Generally, items in thecollection are accessible to the public, but the viewsof the private donors are always considered whengranting access. Although parliamentarians mayconduct party political business from theirelectorate offices, much of their constituency workcould be regarded as similar to the work conductedby government agencies.

Important Issue

• Should electorate records, which recordpublicly funded transactions, beclassified as public records and besubject to the terms of archiveslegislation?

3.1.7 Competitive Tendering andContracting

There is a trend towards adopting more commercialmethods of operation in the public sector. Thistakes various forms, such as commercialisation,corporatisation or privatisation. In addition, servicesare also being contracted out to the private sector.

The Water Authority of Western Australia hasrecently called a tender for the operation andmanagement of its records. The tender documentprovides that issues such as the determination ofwhere information is filed and its retention periodare to be kept in-house (Water Authority, 1995).

Issues of accountability and the preservation of thehistorical record need to be addressed when suchchanges are considered. Functions previouslyundertaken by a government department, but nowperformed by private operators, fall outside thecoverage of archives legislation. This could lessenthe accountability for those functions, even thoughtaxpayers’ money is still being used to fund them.

Some argue that accountability should ‘follow thedollars’ from their initial appropriation byparliament, through departments, agencies andcontractors to the final service recipient. Thiswould infer that archives legislation should coverprivate contractors performing work on behalf ofgovernment. Others argue that this is not necessaryas the public has adequate accountability throughthe government agency’s administration of thecontract. Furthermore, it may be too onerous torequire every supplier of goods and services togovernment to operate a record keeping system ascomprehensive as that which government operates.

Important Issues

• Should archives legislation include therelevant records of private contractorswho are performing functions on behalfof government?

• If so, who should decide which recordsare relevant?

• Alternatively, should a public sectorbody competing with the private sectorbe exempted from archives legislation?

• Is it preferable to have common featuresof accountability between the privateand public sector?

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• Can accountability be guaranteed if anagency contracts out management of itsrecords?

• How should issues of disposal of, andaccess to, relevant records held by aprivate contractor be determined?

3.2 What Constitutes a Public Record

Definitions of public records in archival legislationusually relate to:

• linkage to official business;

• ownership; or

• physical form or format.

The Library Board Act uses the followingdefinitions:

‘public record’ means

(a) any record made or received by a public officerin the course of his duties;

(b) any record made or received by a court orperson acting judicially in Western Australia; ...

‘record’ includes any document, book, plan, paper,parchment or other material or part thereof on which is anywriting or printing or which is marked with any letters ormarks denoting words or any other signs capable ofcarrying a definite meaning to persons conversant withthem, photographs, and any other device by means ofwhich information is recorded or stored.

‘non current public record’ means any public record thathas ceased to be in current use in the public office in whichit was originally made or received, or the public office inwhose custody it has been placed after being so made orreceived. (s.3(1))

In this Act public records are thus defined in termsof their linkage to official business and theirphysical form. However, it can be argued thatrecords are not, or should not be, characterised bytheir physical form, but by their creation in thecontext of a business activity and their retention asevidence of that activity. Standards Australia hastaken this approach:

Transactional records (means):

recorded information, in any form, including data incomputer systems, created or received and maintained byan organisation or person in the transaction of business orthe conduct of affairs and kept as evidence of such activity.(1995: I 8)

None of these definitions distinguishes betweenthose records that have an enduring archival valueand those that do not, such as ephemeral records.This contributes to some uncertainty on the part ofpublic officials as to which records should beretained permanently. Major costs are involved inrecords storage, preservation, transfer to archivalcustody, maintenance, retrieval and access and it isneither practical nor desirable to preserve theentirety of public records. It is possible to definesub-classes of records so that special provisions canbe made for their management. See paragraph 3.6below.

Important Issues

• Are the current definitions of record andpublic record adequate?

• Is it preferable to adopt a broaddefinition such as that in the current Actand regulate the issue of ephemeralrecords by way of administrativepractices and retention and disposalschedules, or attempt to draft adefinition that will clearly identify theephemera?

3.3 Technological Change

Issues of how to define public records and how tomanage them are further complicated bytechnological developments which presentcontinuing challenges for archival authoritieseverywhere. If public records were to be definedwithout regard to the form in which evidence of abusiness activity is captured or maintained, it wouldfollow that the powers and responsibilities of anarchival authority would extend to all publicrecords regardless of form. How it exercises thosepowers and responsibilities in relation to electronicrecords becomes a key issue.

12

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The first and second generation models of archiveslegislation described in paragraph 2.7 are grounded ina custodial approach to archives - that an archivalauthority will at some time take physical custody ofrecords with continuing value. Professional bestpractice is increasingly adopting post custodialapproaches to electronic records. This may point tothe need for a third generation model:

Already the records that in the 1950s, 1960s and 1970sprovided the bulk of the Archives’ business - the majortransactional material, and the case files - are beingreplaced by electronic records created through electroniclodgement and processing ...Australian Archives is giving close consideration to a ...proposal [in which] ... such records are retained in theagency responsible and accessibility maintained bymigrating the records to the latest version of software. ...

The advances in electronic storage capabilities and ease ofcopying address many of the preservation issues that havebeen of concern to archivists. (Stuckey, 1994: 46-47)

Security of electronic records also presents newproblems for archival authorities and recordmanagers within agencies. In Western Australia arecent report by the Auditor General (1995)highlighted significant problems with the security ofelectronic records systems. The report raised issueswhich may have a direct effect upon the quality,range and accessibility of archival records in thefuture.

Important Issues

• Should the definition of public record inany new archives legislation specificallyrefer to electronic records?

• Should provision be made for thedevelopment of standards for thecapture, documentation, appraisal,preservation and long-term accessibilityof records which are maintainedcontinuously in public office electronicrecord keeping systems?

3.4 Powers of Inspection of Public Records

There is an interdependence between provisionsproviding an archival authority with powers of

inspection of public records, the mandatoryarchiving of records and rights of public access.They are all important links in a chain ofaccountability. It is argued that unless arrangementsare in place for assessing the value of records,authorising their retention or disposal andpreventing their destruction, then public accesscannot be guaranteed. Powers of inspection are notexplicit in the Library Board Act, although s.29states that ‘the Board shall have all such powers asmay be necessary for the carrying out of [the] duty’of ‘... selecting for preservation non-current recordsnotified to the Board by public offices.’

Important Issue

• Should archives legislation provide foran archival authority to have powers ofinspection over all public records?

3.5 Mandatory Archiving of Records

There is no provision in the Library Board Act formandatory transfer of public records to the PublicRecords Office, nor is there a provision to preventan agency from recalling previously archivedrecords and returning them to current files. In thisrespect the Act comes into the first generationmodel of archives legislation.

Under the Act, transfer to archives is initiated whenan officer in charge of a public office notifies theLibrary Board of the intention to either destroy,dispose of, or transfer agency records. Followingnotification, the Board may accept or require thetransfer of any of these records to archives. Shouldan agency not make such a notification, transfer toarchives would never occur.

The case for requiring mandatory transfer after acertain period is based on the principle of providingpublic access to records for reasons ofaccountability, research and heritage.

The Minister for the Arts proposes that a publicrecord should be transferred to archives no laterthan 25 years after the creation of the earliest partof that record. There would be a penalty for non-compliance. However, an agency could obtain an

13

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exemption, covering specified public records, fromthe compulsory transfer requirement.

Important Issues

• Should there be a provision formandatory transfer of records to Statearchives?

• What is an appropriate period?

• Should there be any exemptions tomandatory transfer?

• Should records that have been archivedbe able to be returned to the originatingagency and become part of the currentrecord again?

3.6 Disposal of Records

Retention and Disposal Schedules (or disposalauthorities) are generally developed by an agency inconsultation with an archival authority. They aredesigned to ensure that records are not destroyedwithout due processes of evaluation andauthorisation.

Under the Library Board Act, public records canonly be destroyed or disposed of:

• in accordance with an approved Retention andDisposal Schedule; or

• if the Library Board has formally indicated thatit does not require those records for the StateArchives; or

• if the Library Board does not object whennotified of the intention to destroy or dispose ofthem.

Other means are also available for disposal of sub-classes of records. For example, Commonwealthagencies can control disposal of records by meansof ‘normal administrative practice’ (NAP). This isa provision in the Archives Act 1983 (Cwlth) thatavoids the need for formal approval for every

14

administrative action affecting Commonwealthrecords.

In accordance with NAP, Australian Archives hasdeveloped guidelines to assist records users andmanagers to make disposal decisions for materialthat is clearly ephemeral or that may haveadministrative value for a limited number of years.

The advantages of NAP are a more effective use ofresources and improved coverage of an increasingvolume of public records.

The disadvantages include the possibility ofvaluable records being destroyed, but this is lesslikely in an organisation whose officials have beentrained in the importance of maintaining the publicrecord. Australian Archives developed its NAPguidelines following several years of operation ofits Archives Act and the development of disposalauthorities.

Important Issue

• Should new archives legislation includealternative provisions for the disposal ofsub-classes of records such as normaladministrative procedure?

3.7 Who Should Set and Monitor Standards forRecords Management

The Public Sector Management Act 1994 requiresstandards for the management of records (seeparagraph 2.2.2). It does not specify what thosestandards should encompass or who should haveresponsibility for setting or monitoring suchstandards.

The proposal of the Minister for the Arts suggeststhat the Public Records Commission would beresponsible for identifying and articulating issuesfor which standards would be required and, inconjunction with the Auditor General, for ensuringthat mechanisms are in place for monitoring thesestandards. The Public Records Office within theState Library would have responsibility fordeveloping standards for endorsement by theCommission.

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Thought needs to be given to the type of standardsthat would be necessary if a major purpose of anarchival authority is to ensure effectiveaccountability. Standards Australia has identifiedareas at agency level in which inadequate recordkeeping contributes to accountability failures. Theyinclude:

• failure of individuals or systems to makerecords in the first place;

• failure to make records that are adequate tomeet accountability and other organisationalrequirements;

• not capturing records into record keepingsystems;

• not identifying and retrieving the authoritativeversion of a record where multiple versionsexist;

• not maintaining records for the time necessaryto meet specific accountability requirements;and

• not assigning responsibility for different aspectsof record keeping at appropriate levels in theorganisation, so that no one takes responsibility(1995: II 4).

In addition to record keeping standards for agenciesthere needs to be standards for the archivalauthority itself.

Important Issues

• What areas should be included instandards for record keeping both atagency level and in the archivalauthority?

• Should the same body haveresponsibility for both setting andmonitoring standards?

• If the Public Records Commission wereresponsible for endorsing and monitoringstandards, would this really separate theregulatory and operational roles?

15

3.8 Penalties

Unauthorised destruction or tampering with publicrecords is a major threat to accountability. Royalcommissions and other inquiries are hampered indetermining the true course of events when suchactivities have occurred. The Library Board Actprohibits the unlawful destruction of records, butdoes not provide penalties. The Criminal Code Act1913 (see paragraph 2.2.3) does provide penalties,as do most archives acts in other jurisdictions.However, these provisions have rarely been used.

Important Issues

• Should there be penalties for the wilful,unlawful destruction of, or tamperingwith, public records?

• If penalties are included in newlegislation, should those in the CriminalCode be repealed?

• If such penalties are never used do theyserve a useful purpose?

• Would better training and education ofpublic officials in record keeping bemore beneficial?

3.9 Reporting Arrangements

The Royal Commission called for the establishmentof a separate and independent archives authority,with powers adequate to its purpose in view of itspublic accountability role. The independence ofother statutory officers with responsibilities foraccountability issues, such as the Auditor General,the Ombudsman, the Public Sector StandardsCommissioner and the Information Commissioner,is said to be protected by providing that they reportdirect to parliament.

Currently in LISWA the Director of the PublicRecords Office reports through the State Librarianto the Library Board, which reports to the Minister.The Minister for the Arts proposes a model inwhich the Public Records Commission, a body withseveral members, would report to parliament, but

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the Director of the Public Records Office wouldstill be responsible to the State Librarian (seeAppendix 2). It could be said that in neither of thesestructures is independence guaranteed. The value ofretaining archives arrangements as an integral partof a library has also been questioned:

It has been successfully argued in most jurisdictions inAustralia that subsuming the archival function to thelibrary function is dysfunctional. (McKemmish, 1995: 3)

Important Issues

• Should an archival authority reportdirect to parliament?

• Does the proposal to retain a PublicRecords Office within the State Librarymilitate against its independence?

• Should there be a Public RecordsCommission, what expertise should itsmembership include?

• Should individuals with other statutoryresponsibilities for accountability beincluded in a Public RecordsCommission, or would this raise conflictof interest issues?

• Would the public accountability role ofthe archival authority be undermined ifwide discretionary powers, such as forexempting classes of records, were to bevested in an individual other than anarchival authority?

3.10 Who Should Pay for the Preservation ofPublic Records

There is an increasing trend for governmentagencies to move to a concept of user pays. This iswhere the user or beneficiary of a governmentservice is expected to pay for it, rather thanreceiving subsidies from other users or cost relieffrom the government.

One option could include charging government

16

agencies for the storage, preservation anddestruction of records. It is argued that chargingencourages agencies to make decisions regardingrecords with an appropriate understanding of thecosts involved, such as storage space. However, itcould result in the premature destruction of recordsor a reluctance to keep records in long term storage.

Another option would be to levy charges for accessto archived records such as photocopying fees,annual fees for researchers or entry charges.Revenue raised from such initiatives may beminimal. Some argue that as archives are a keyaccountability mechanism, charges are notappropriate.

Important Issues

• Would a user pays system encouragegovernment agencies to be more realisticin considering the retention of theirrecords or would it result in thepremature destruction of potentiallyvaluable records?

• Should agencies be required to pay thecosts of preservation, if record keepingstandards are set externally?

• How should such charges be met in thecase of defunct agencies?

• Should government have to bear thetotal archival cost of private research,sometimes undertaken for profit, or is itreasonable to levy some charges onarchives users?

3.11 Access to Archives

3.11.1 Archival Periods

An archival period generally means that time duringwhich a public record is not available for publicaccess.

No specific archival period is provided for in theLibrary Board Act, although 30 years is thepractice unless the agency in which ownership of

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the record is vested, sets an alternative period.Thirty years is the standard archival period in manyjurisdictions including the Commonwealth.

The paper by the Minister for the Arts proposesthat a 25 year archival period should apply, with anagency being able to permit access sooner or seekan exemption where it wishes to restrict access for alonger period. It proposes that 75 years after theexempt record’s creation, that record would bemade available for public scrutiny. The discussionpaper gives no guidance as to what records wouldqualify for exemption or the grounds for exemption.

The issue of archival access to Cabinet records isaddressed in the Commission on Government’s firstreport.

Important Issues

• Is it appropriate to set a uniform periodfor limiting access to public records?

• If so, what would be an appropriateperiod?

• Should there be only one archival periodor should different periods be setaccording to the type of public record?

• Should there be a limit on the time whichrecords can be exempted from access?

3.11.2 Privacy

Many government records contain details about thepersonal lives of individuals. Some of these recordsmay eventually be destroyed but others areconsidered to form an important historical or socialrecord and are retained. When examining records, itis important that archives staff should be consciousof appropriately identifying sensitive informationsuch as information about marital problems,domestic violence or medical records of individuals.It may be felt that particular consideration needs tobe given to records held about Aboriginal people inview of the type of information and the manner inwhich much of it was collected:

Aboriginal people have a unique history of being ordered,controlled and monitored by the State. For each individualthere are files maintained by agents of the State [which] ...document each life to a degree that few non-Aboriginalpeoples lives would be recorded. Not infrequently the filescontain false or misleading information; all too often thefiles disclose not merely the recorded life history of theAboriginal person but also the prejudices, ignorance andpaternalism of those making the record. (Cwlth, RoyalCommission into Aboriginal Deaths in Custody, 1991:1.2.11)

Section 32(5) of the Library Board Act addressesprivacy considerations by enabling the Board torestrict access to records of such ‘private orpersonal nature that they should not be open forgeneral public consultation’. No general guidelineshave been formulated to assist officers inidentifying personal sensitive information and therehave been instances where restrictions have notbeen imposed on access to sensitive personalmaterial.

The Archives Act 1983 (Cwlth) provides forexemptions from the statutory right of public accessfor ‘information or matter the disclosure of which... would involve the unreasonable disclosure ofinformation relating to the personal affairs of anyperson (including a deceased person)’ (s.33(1)(g)).It also provides a right of appeal against suchexemptions.

In addition, the Australian Archives has developedcomprehensive guidelines to assist with decisionmaking in accordance with privacy principles.There is no exception to the 30 year access rule forcases of basic identifying information about namedindividuals, such as date and place of birth,educational qualifications, employment history andthe like. However, medical information is generallyexempted for at least the known or assumed lifetimeof the subject. Information about criminalconvictions has generally been released after 30years, provided the case was heard in open court.

Records which reveal information about maritalproblems, domestic violence, incest and the likemay be withheld from release for as long as acentury depending upon the perceived need for theprivacy of the individuals concerned.

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The Privacy Act 1988 (Cwlth) does not apply torecords which are available for public access underthe Commonwealth archives legislation.

Ideally, any legislation should address the issue ofprivacy protection while acknowledging the benefitswhich can be derived by permitting access toarchival material for research and other purposes.There are well established rules, governed by ethicscommittees, for using information in properlydesigned research projects. Identifying features arenever used. It could be argued that it would be ofbenefit to an archival authority to establish anarchival ethics advisory committee to assist indecision making in this area.

The paper by the Minister for the Arts stipulatesthat any proposed legislation should embody theprinciple that ‘[c]onfidentiality or secrecy ofinformation in public records is not a justificationfor destroying them. At the same time, strictsecurity must protect individuals’ and agencies’rights’ (Minister for the Arts, 1994: 5).

Important Issues

• How can legislation balance archivalaccess and the protection of privacyinterests?

• Should archives legislation affordspecial protection to personal,confidential information such as thatcontained in medical and other likerecords?

• Is the proposed 75 year limit on exemptrecords appropriate to protect suchinformation?

• How should the legitimate needs ofresearchers be met?

• What should be the criteria forpermitting records to be exempt fromaccess?

• Should records be expunged ordestroyed for privacy reasons?

3.11.3 Other Exemptions

Exemption provisions are found in all freedom ofinformation (FOI) legislation and most archiveslegislation. Ideally they provide a workable balancebetween the public interest in a right of access toinformation and the need to protect other public andprivate interests.

The Library Board Act does not set out grounds forwithholding records from public access, other thanthose outlined in paragraph 3.11.2.

Under the Commonwealth archives legislation thereare 11 separate grounds on which a public recordmay be withheld from access (ss 31(3), 32-33).They more or less mirror exemptions found in thefederal FOI legislation, but there are fewer of them,no doubt due to the reduced sensitivity (because oftheir age) of the records being accessed under thisAct.

Important Issues

• Should archives legislation containexemptions for records once they reachthe open access period?

• If so, should the grounds warrantingexemption be set out?

• Would it be preferable to have a generaldiscretionary power of exemption?

• Who should make decisions regardingexemptions?

• What rights of review or appeal shouldthere be in respect of exemptiondecisions?

• Should there be a time limit placed onexempt records?

• Should exemptions under archiveslegislation mirror those contained in FOIlegislation?

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3.12 Relationship Between Access UnderArchives Legislation and Freedom ofInformation Legislation

Archives and FOI legislation should becomplementary, in that both confer rights of accessto certain public records. FOI covers access tocurrent and semi-current records and archivesgoverns access to non-current records. Ideally, oncearchives access is available, FOI access should cutout.

Under the current Western Australian FOI model,access to documents not yet available for inspectionthrough the Public Records Office can be by way ofan FOI application. Even if the documents havebeen transferred to the Public Records Office butare not available for public inspection, the accessprovisions of the FOI Act may still apply, asSchedule 2 clause 7 specifically provides that adocument transferred by an agency for inclusion inthe State Archives is to be regarded as being adocument of that agency.

However, once available for inspection through thePublic Records Office, FOI access procedures donot apply (s.6 Freedom of Information Act 1992).In the discussion paper by the Minister for the Artsit is suggested that ownership of public records,once transferred to archives, should vest in thePublic Records Office. This would seem to conflictwith current provisions in the FOI Act and thereneeds to be some clarification of the way in whichthe access provisions in any proposed legislationcan be integrated with the existing FOI model.

Although complementary, there are differencesbetween these rights of access. Under FOIlegislation a particular document is not availablefor access or inspection until a formal applicationhas been made and a decision reached. Underarchives legislation, most public records arereleased for general public inspection after thearchival period without the need for such a formalrequest for access.

In addition, access to records via archives isgenerally free, whereas the FOI system allows forthe imposition of fees and charges.

Important Issues

• How should FOI and archives access beintegrated?

• Should FOI access apply to recordswhich have been transferred to archives,but which have not yet reached thepublic access period?

3.13 Ownership of Public Records

Under current arrangements, ownership of publicrecords remains vested in the agency which createdor received them, or in successor agencies, evenafter the records have been lodged with the PublicRecords Office.

Important Issue

• Who should own records in archives oncethey are available for public access?

3.14 Physical Location of Archives

The Public Records Office is located within theAlexander Library, which also houses the BattyeLibrary, the Film and Video Library and theLISWA administration. This co-location providesthe convenience of a one stop shop for researchersand is given as one reason for continuing theadministrative link with LISWA.

Some bodies, particularly local governmentauthorities, are opposed to their records leavingtheir region. Section 14 of the Public Records Act1973 (Vic.) provides for the appointment of placesoutside the Public Records Office as places ofdeposit for any specified classes of record.

In paragraph 3.3 (Technological Change), it wasnoted that it may be appropriate for certain classesof records to remain with the agency creating ormanaging them. They may never physically belodged with the Public Records Office. Accesswould be arranged according to appropriatetechnology.

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Important Issues

• Should the convenience of the physicalco-location be a factor in determiningthe legislative and administrativearrangements for the Public RecordsOffice?

• Could LISWA and the Public RecordsOffice share the same building, but beadministered separately?

• Should legislation provide fordecentralised and/or commercialrepositories?

4 SUMMARY

Part II of the Report of the Royal Commissionfocused the community’s attention on shortcomingsin the Government’s record keeping practices.Whilst the Commissioners considered that ‘[t]herecord creation, maintenance and retention practicesof government and its agencies are matters forwhich ministers and chief executive officers bear aparticular responsibility’, they went on to say‘overall responsibility for records cannot be leftwith these officials. A separate body should beentrusted with the general oversight of publicrecords, equipped with powers adequate to thepurpose’ (WA Royal Commission, 1992: 4.3.3).

This discussion paper has identified some of theissues that need to be considered in drafting alegislative model for such an independent body. Ithas looked at the matters that would need to beincluded in any archives legislation, and also at theparticular archives and record keeping environmentcurrently existing in Western Australia.

Some of the major issues include:

• whether the definitions of public records andpublic office should be expanded;

• how the issue of electronic records, which is ofgrowing importance, should be addressed;

• whether an archival authority should be astatutory officer along the lines of the AuditorGeneral who should report direct to parliament;

• how best the conflicting requirements for accessand privacy should be met;

• whether there would be a conflict in the sameofficer (or body) setting and endorsingstandards and monitoring them;

• how the record keeping aspects of contractingout government services should be addressed;

• where ownership of the public record shouldrest;

• whether there should be mandatory transfer ofpublic records to archives, and if so when;

• whether access to archives should continue tobe free; and

• whether there should be penalties for tamperingwith the public record.

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REFERENCES

Allen, R. E. (editor) (1990) The Concise OxfordDictionary of Current English 8th edition Oxford:Clarendon Press

Bearman, David (1993) ‘Archival DataManagement to Achieve OrganisationalAccountability for Electronic Records’ Archivesand Manuscripts 21 (1): 14-27

Commonwealth of Australia, Royal Commissioninto Aboriginal Deaths in Custody (Cwlth RoyalCommission into Aboriginal Deaths in Custody)(1991) National Report Overview andRecommendations Canberra

Court, R. (1993) Circular to Ministers No. 39/93:Records Disposal Guidelines - Ministerial OfficesPerth

Hurley, C. (1994) ‘From Dustbins to Disk-drives:A Survey of Archives Legislation in Australia’ inMcKemmish and Piggott (1994)

Library and Information Service of WesternAustralia (1994) Normal Administrative Practicesfor the Management of Public Records Draft, Perth

McKemmish, Sue (1993) ‘Introducing Archivesand Archival Programs’ in Keeping Archives 2ndedition Port Melbourne: D. W. Thorpe

McKemmish, Sue (1995) Review Report to COG

McKemmish, Sue and Michael Piggott (editors)(1994) The Records Continuum: Ian MacLean andthe Australian Archives Melbourne: Ancora Press

Sharman, Bob (1994) ‘The Hollow Crown’Archives and Manuscripts 21 (2): 196-207

Standards Australia (1995) Records Management:Draft Australian Standards for Comment Sydney

Stuckey, Steve (1994) ‘Keepers of the Fame? TheCustodial Role of Australian Archives - Its Historyand Its Future’ in McKemmish and Piggott (1994)

Water Authority of Western Australia (WaterAuthority) (1995) Tender Document for the

Operation and Management of Records for theJohn Tonkin Water Centre and Regions Leederville

Western Australia, Commission on Government(1995) Discussion Paper No. 1 Perth

Western Australia, Minister for the Arts (Minister forthe Arts) (1994) Discussion Paper on New PublicRecords Legislation for Western Australia Perth

Western Australia, Office of the Auditor General(Auditor General) (1995) PerformanceExamination: Management and Control ofMicrocomputer-based Systems in WesternAustralian Government Agencies (Report No. 4)Perth


LEGISLATION

Archives Act 1983 (Cwlth)

Australia Act 1986

Criminal Code Act 1913


Library Board of Western Australia Act 1951-1983

Local Government Act 1960

Local Government Act 1960 (Building Regulations1989)

Privacy Act 1988 (Cwlth)

Public Records Act 1973 (Vic.)


Royal Commission (Custody of Records) Act 1992

Royal Commission (Custody of Records)Amendment Act 1992

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APPENDIX 1

Recent reviews of records management in WesternAustralia.

• Western Australia, Office of the AuditorGeneral (May 1995) Performance Examination:Management and Control of Minicomputer-based Systems in Western AustralianGovernment Agencies (Report No. 4) Perth

• Western Australia, Office of the AuditorGeneral (May 1994) Accountability for PublicSector Records Management: PerformanceExamination Perth

• Western Australia, Public Service Commission,John Hales (November 1992) Report on PublicSector Record Keeping Standards andPractices Perth

• The Library and Information Service ofWestern Australia (September 1992)Discussion Paper on the Library, Archives andInformation Services Act of Western Australia :a Proposed Act to Replace the Library Boardof Western Australia Act, 1951-1983 Perth

• Western Australian Government FunctionalReview Committee (November 1988) Review ofPublic Records Management: storage andretrieval Perth

• Cross, D. J. (Principal Archivist, ArchivesAuthority of NSW) (May 1988) Report on aVisit to Western Australia to Advise onArchival and Records Management MattersPerth

• Western Australian Government FunctionalReview (September 1987) Review of StateLibrary Service Perth

• Western Australian Government FunctionalReview Committee (May 1986) FunctionalReview of the State Library Service of WesternAustralia Perth

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PARLIAMENT

Library Board ofWestern Australia

DirectorPublic Records Office

Chief Executive Officer&

State Librarian

MINISTER

Records Management OfficeArchives

Library & Information Service of WAStanding Committee on Public Records

Public Records Office

Chief Executive OfficerLibrary Information Service of WA

DirectorPublic Records Office

Library Board ofWestern Australia

MinisterPublic Records Commission

PARLIAMENT

Reporting Relationships in Model Proposed by the Minister for the Arts, July 1994

APPENDIX 2Reporting Relationships in LISWA Structure as at 1 July 1995

23

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25

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Notes:

27

Page

Page

PREFACE

The Commission on Government’s functions includeinquiring into 24 Specified Matters if and to theextent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of parliament.The Commission may also inquire into other mattersit considers relevant to the prevention of corrupt,illegal or improper conduct in the public sector.

The Specified Matters, which are set out in the FirstSchedule of the Commission on Government Act1994, provide the initial focus of the Commission’sinquiries. The relevant issues, however, cannot beaddressed in a vacuum. The Commission wishes toencourage a proper understanding of the issues andof the competing arguments for and against change.This applies also to any matters which may becomepart of the Commission’s inquiries. We haveconcluded that it is necessary to address the contextin which the Specified Matters have arisen, thehistorical, contemporary and topical circumstancesand events which surround them and their relevancefor the future.

The Discussion Papers which the Commission hasprepared and will prepare in respect of the SpecifiedMatters and the other matters into which it mayinquire are intended to canvass some of the issueswhich may arise within this broader picture. Thepapers are designed to encourage debate and writtensubmissions upon a wide range of issues whichmight be relevant to the Commission’s tasks.


This paper deals with Specified Matter 11concerning the steps that should be taken tointroduce a whistleblowing scheme in this State. Italso discusses Specified Matter 13, which is aboutthe appropriate role, powers and functions of theOfficial Corruption Commission.

The initial task of the Commission is to inquire into awhistleblowing scheme as a measure for the exposureof impropriety and corruption. The Commission willalso examine the operational and legal framework ofexisting accountability agencies, including the OfficialCorruption Commission, and assess their effectiveness

in preventing and exposing impropriety and corruptionin the public sector.

This paper identifies some of the issues which maybe relevant to the Commission’s task and providesbackground information. The issues identified andinformation provided are not intended to beexhaustive. Submissions may address any otherrelevant matters.


SUBMISSIONS



FORMAT





a paper clip and are on A4 standard sized paper;OR

are submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a.(This is especially important for lengthysubmissions.)

CONTENT


2

Page







3

ISBN 0 7309 6906 1Copyright Commission on GovernmentAugust 1995

CONTENTS

Part I WHISTLEBLOWING

1 INTRODUCTION

2 WESTERN AUSTRALIANCONTEXT


3.1 Actions, Activities and Concerns tobe Covered by a WhistleblowingScheme

3.2 Public Sector ReportingMechanisms

3.3 Public Disclosure in the FirstInstance

3.4 Defamation Laws3.5 Reporting to Members of Parliament

and Parliamentary Committees3.6 Secrecy Laws3.7 The Private Sector3.8 Whistleblower Protection3.9 Protection for Those Against Whom

Allegations are Made

4 SUMMARY

Part II OFFICIAL CORRUPTIONCOMMISSION

1 INTRODUCTION

2 WESTERN AUSTRALIANCONTEXT


3.1 Defining Behaviour of PublicOfficials That Does Not Meet PublicSector Standards

3.2 What is the Extent of Improprietyand Corruption in the WA PublicSector?

3.3 Should the Official CorruptionCommission Continue in its PresentForm?

3.4 Prevention of Impropriety andCorruption

Page

3.5 Public Exposure of Impropriety andCorruption

3.6 Accountability Agencies3.7 Complaints Against Police

4 SUMMARY

REFERENCES

LEGISLATION

SUMMARY OF ACRONYMS

Part I WHISTLEBLOWING

1 INTRODUCTION

A ‘whistleblower’ can be defined as a:

person who exposes or brings to public attention anirregularity or a crime, especially from within anorganisation. (Moore, 1993: 1217)

Hero, dobber or mischief-maker? Whistleblowing isa very emotive word which can conjure up differentimages for different people. Cripps has quoted thefollowing passage from a Social Audit Ltddocument:

It is significant that the English language is rich in wordslike ‘rat’, ‘squeal’ and ‘sneak’ - but no word exists todescribe the justified, even commendable, passing on ofinformation. The nearest thing to it is the American word‘whistleblowing’. ‘Whistleblowing’ means passing oninformation from a conviction that it should be passed ondespite (not because of) the embarrassment it could causeto those implicated. (Cripps, 1986: 257).

In Australia where dobbing is not accepted andmateship often overrides honesty, life forwhistleblowers can become unbearable as theorganisation closes ranks against them.

Experience both in Australia and overseas hasshown that whistleblowers and their families areoften harassed and suffer emotionally andfinancially as a consequence of the whistleblowerhaving exposed unacceptable conduct within anorganisation. Therefore, it may be important toprotect whistleblowers and their families fromreprisals. It may also be important that people or

organisations who are the subject of allegationsmade by whistleblowers are adequately protected.

De Maria and Jan (1994) in Queensland examinedthe experiences of 102 whistleblowers. Reprisalswere noted in 71% of the sample and includedsacking, psychiatric referral, demotion, beingcharged and being sued. Some claimed they wereoffered payment or promotion in return for theirsilence.

As implied in the quote from Cripps (1986)mentioned above, there can be times wheninformation is made public in circumstances whereit is motivated by malice, and such leaking ofinaccurate or commercially sensitive material canruin an organisation or person. However, in thepublic interest, it has been recognised that it isimportant to achieve a balance between thatinformation which the public should know, and thatinformation which is either mistakenlymisconstrued or vexatiously revealed.

In recognition of and seeking to balance theseissues, legislation intended on the one hand topermit whistleblowing and protect whistleblowers,and on the other to defend the interests of thoseagainst whom allegations are made, is nowbecoming more common both overseas and here inAustralia.

In November 1992 the Royal Commission intoCommercial Activities of Government and OtherMatters (Royal Commission) recommended that:

The Commission on Government review the legislative andother measures to be taken -

(a) to facilitate the making and investigation ofwhistleblowing complaints;

(b) to establish appropriate and effective protections forwhistleblowers; and

(c) to accommodate any necessary protection for thoseagainst whom allegations are made. (WA RoyalCommission, 1992: II 4.7.18)

This recommendation now constitutes SpecifiedMatter No. 11.

4

Page

Overseas Experience

The Civil Service Reform Act 1978 (USA) was oneof the first pieces of legislation to includeprovisions to protect whistleblowers. Thelegislation establishes an Office of Special Counseland a Merit Systems Protection Board andspecifically prohibits reprisal action against Federalemployees and applicants for Federal employmentwho lawfully disclose information which theyreasonably believe evidences illegality,mismanagement, a gross waste of funds, an abuseof authority, or a substantial and specific danger topublic health or safety. The WhistleblowersProtection Act 1989 (USA) provided furtherprotection and options for employees againstreprisal action.

In 1986, the Ontario Law Reform Commissionreleased its Report on Political Activity, PublicComment and Disclosure by Crown Employeeswhich gave qualified support for whistleblowerprotection for Crown employees. In 1993, Bill 117was passed establishing a position of Counsel as anoffice of the Legislative Assembly. The Counsel isempowered to refer allegations of illegality, grossmismanagement and waste of moneys, abuse ofauthority, and gross health, safety or environmentalhazards to the appropriate agency head forinvestigation and report. The whistleblower isprotected against reprisals by a Labour RelationsBoard and the alleged perpetrators protected fromdisclosure during the course of investigations.

The United Kingdom does not have specificwhistleblower legislation. However, sections of thecommunity have recognised the need to protectthose making disclosures in the public interestresulting in the establishment of support groups andservices for whistleblowers. In 1991, the RoyalCollege of Nursing set up a whistleblowing service.Other groups such as Freedom to Care and a legalcharity known as Public Concern at Work have alsobeen established.

In New Zealand a Private Member’s Bill, theWhistleblowers Protection Bill, was introduced inJune 1994. The Bill has been referred to a SelectCommittee on Justice and Law Reform and has yetto be debated. It provides for the establishment of aParliamentary Office called the Whistleblowers

Protection Authority to advise and counselwhistleblowers, investigate and monitor disclosures,make public statements and report to the House ofRepresentatives or the Prime Minister. If awhistleblower were to make a public interestdisclosure to the proposed Authority, thewhistleblower would obtain immunity from civiland criminal proceedings and have protectedinformant status under the Human Rights Act 1993(NZ) with concomitant rights of compensation forvictimisation. An appropriate disclosure is thatwhich concerns a danger to public health and safetyor the environment; unlawful use of public funds orresources; or a danger to the maintenance of lawand justice.

Australia

In recent years there has been significant Statelegislation enacted to protect whistleblowers. Forexample, South Australia’s WhistleblowersProtection Act 1993 provides protection for both thewhistleblower and alleged perpetrator. Compensationis available to the whistleblower for victimisation butthe Act is silent on the responsibility of agencies toeither advise or counsel the whistleblowers save that,where practicable, a whistleblower is to be advisedof the outcome of any investigation.

Queensland’s Whistleblowers Protection Act 1994and New South Wales’ Protected Disclosures Act1994 provide legislative protection to thewhistleblower and rely largely on the alreadyestablished and well resourced investigatory bodies,the Criminal Justice Commission (CJC) and theIndependent Commission Against Corruption(ICAC), respectively, to conduct investigations.

In addition to this specific whistleblower legislationthere are also whistleblowing provisions in otherActs such as the Australian Capital Territory’sPublic Sector Management Act 1994, and amendedprovisions in Western Australia’s OfficialCorruption Commission Act 1988 (OCC Act)which commenced in May 1994.

At the Commonwealth level, the Senate SelectCommittee on Public Interest Whistleblowing(Senate Select Committee on PIW) reported inAugust 1994. It recommended amongst otherthings that:

5

Page

the practice of whistleblowing should be the subject ofCommonwealth legislation to facilitate the making ofdisclosures in the public interest and to ensure theprotection for those who choose so to do. (Senate SelectCommittee on PIW 1994 Report: 6.66)

As at the time of publication it is not knownwhether the Federal legislature will act on thisrecommendation.

2. WESTERN AUSTRALIAN CONTEXT

Leaving aside the malicious, wilful or mischievousdobber, the genuine whistleblower, motivated byhonesty, a clear sense of right versus wrong andpublic spirit may often be confronted by difficultproblems. There may be clear and unmistakableevidence to support disclosure or there may only beglimpses of improper conduct, hints at what is goingon or mere suspicion. Therefore, the whistleblowermay need commonsense and judgment to know whento remain silent or when to take action. This can be alonely, personal challenge.

If a decision is made to blow the whistle, thewhistleblower must then decide whether to reportthe information internally or externally. Byreporting a matter externally in the first instance, anentire organisation may be put under a cloud. If asuperior is involved, the whistleblower in reportingthe matter externally may appear to be self-serving,revengeful or maliciously undermining theorganisation. If the report is internal there is achance the matter may not be properly dealt withand the whistleblower may suffer reprisal.

Irrespective of whether they disclose internally orexternally, and if, despite good intentions, thewhistleblower’s judgement were faulty, his or hercareer in the organisation may be over. Even if he orshe is vindicated and the whistleblower is officiallycalled a hero, unofficially retribution may occur.

Roberts (1994) in the Bulletin relates:

The trials of Bill Yabsley, a former secondary schoolteacher, are typical of many. Yabsley claims his problemsbegan in 1985, when the state education departmentformally reprimanded him for insubordination after herefused a request from his principal at a Queenslandcountry school to accept a student’s undated medicalcertificate. Yabsley says he was transferred against his will

to a Brisbane school, where he was directed in 1986 to alter17 assessment reports he had prepared on his students.

Yabsley claims his repeated efforts to force an investigationinto this and other incidents led to a departmental warning in1988 that he would be sacked if he continued to ‘raise anymatter of the past’. In 1990, aged 39, he was retired onstress-related grounds. The following year, the department,after considering representations from Yabsley’s union,formally apologised to him and withdrew the 1985reprimand. Yabsley was reassessed in 1992 by adepartmental psychiatrist who found he was fit, but he hasnot been re-employed. (The Bulletin, 4 October 1994: 40-41)

The Royal Commission recommended thatnotwithstanding the embarrassment or difficulties itmay create, whistleblowing legislation is desirable.The Royal Commission stated that in one particularmatter, a disclosure could have been made by anindividual which might have avoided the loss ofmany millions of dollars, but that person wasadvised his contract prevented that disclosure beingmade (WA Royal Commission, 1992: II 4.7.1).

The Royal Commission identified what it called‘vital prerequisites’ for a whistleblowing schemefor Western Australia. These were:

(a) that it be credible so that officials and others notonly feel that they can use it with confidence butalso can expect their disclosures will receive properconsideration and investigation;

(b) that it is purposive in the sense that the proceduresit establishes will facilitate the correction ofmaladministration and misconduct where found toexist; and

(c) that it provides reassurance both to the public andto the persons who use it. Consistently with thepreservation of confidentiality in relation tooperational matters, there should be appropriatereporting to Parliament. The public is entitled toknow that where allegations are made, they havebeen investigated and, if substantiated, remedialaction taken. Persons using it are entitled to expectthat they will be protected from reprisal. (WA RoyalCommission, 1992: II 4.7.5)

There are numerous agencies in this State which,with some expansion of functions, may be suitablefor the role of receiving and investigatingcomplaints by whistleblowers. Consequently, it maybe that a newly created organisation is notnecessary. For example in 1989 the OCC was

6

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established in Western Australia to receivecomplaints concerning corruption in the publicsector. Changes to the OCC Act have now given alevel of whistleblower protection to WesternAustralians. Under the OCC Act it is an offence totake reprisals against or to harass a person who hasprovided information to the OCC. The Act furtherprovides that information received is confidential.However, the OCC only deals with matters whichconstitute crime under The Criminal Code.

Ethics and moral leadership within organisationsare important issues for both whistleblowing andthe prevention of impropriety and corruption.Langford (1990) noted that:

Even when public servants and politicians can understandthe rules and regulations created to fence them in, theyignore them or try to get around them because the rules aregenerally out of touch with the realities of the political orbureaucratic world which they inhabit. They take their cuesabout the nature of good and bad from their moreexperienced colleagues and not from pronouncements ofsenior executives and central agency staffers far removedfrom the problems they confront on a day-to-day basis.(Langford, 1990: 16)

Peachment (1995) reporting on a survey of seniorexecutives within the Western Australian publicsector stated that respondents rate ethics andintegrity highly among their primary job skills. Inresponse to a specific question concerning factorsinfluencing (un)ethical behaviour, the climate withinone’s agency, behaviour of one’s peers and ethicalpractices of one’s profession outranked the threeremaining factors which were society’s moralclimate, formal government policy and personalfinancial need. Peachment concluded that:

This underlines the importance senior managers place onrole models such as the behaviour of professionalcolleagues and civic leaders. (Peachment, 1995: 118)

3. ISSUES FOR CONSIDERATION

3.1 Actions, Activities and Concerns to beCovered by a Whistleblowing Scheme

Matters which could be covered by awhistleblowing scheme are generally considered tobe those that are in the public interest and thereforeshould be exempt from normal duties ofconfidentiality. These matters include:

(a) illegality;(b) improper conduct;(c) maladministration;(d) waste, mismanagement and improper use of

public funds;(e) potential environmental damage; and(f) risks to public health and safety.

Important Issues

• Should whistleblowing activities beprotected?

• Should whistleblowing be defined inlegislation?

• Which matters should be covered by awhistleblowing scheme in WesternAustralia?

• Should the matters (a) to (f) above orany additional matters be defined inlegislation?

• Should disclosure of acts of omission bepermitted?

• Should there be a time limit imposed inrespect of disclosures of wrongdoing inthe past?

3.2 Public Sector Reporting Mechanisms

The Royal Commission believed that all agencies inthe public sector including statutory authorities andstate-owned companies should establishconfidential procedures which allow for reportingof maladministration and misconduct within theorganisation itself.

When defining the extent of coverage of anywhistleblowing scheme for the public sector inWestern Australia the inclusion of local authoritiesis an important consideration.

The Queensland Electoral and AdministrativeReview Commission (EARC) in its 1991 Report onProtection of Whistleblowers stated:

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Nothing was put to the Commission to persuade it that therecommended scheme of protection for whistleblowersshould not apply at the local government level. It is theCommission’s view that it is essential that the schemeshould apply to all public sector employees and officeholders, including those in local government authorities.(EARC, 1991: 10.54)

The Royal Commission also believed that acomplainant should have the clear option to makehis or her report to an appropriate independentpublic agency which is authorised to receive suchcomplaints and to ensure their adequateinvestigation (WA Royal Commission, 1992 II:4.7.6).

Important Issues

• Should all agencies in the public sectorestablish confidential procedures whichallow for reporting of maladministrationand misconduct?

• Should all public sector bodies becovered by a whistleblowing scheme orshould there be some exceptions forexample, the Parliament, the Courts,Cabinet, the Police Force, localgovernment authorities?

• Should a whistleblower exhaust internalprocedures before external procedurescan be used? Should there be a choice?

• Should a whistleblower also have theclear option to make his or herdisclosure to an appropriate independentagency?

• If so, should only one independentagency receive disclosures or would it bebetter if several agencies are able toreceive complaints?

• Are there existing agencies which couldreceive disclosures?

• To what extent is it necessary that thisagency/these agencies be prescribed bylegislation as agencies to whichdisclosures can be made?

• Should a new independent agency beestablished by legislation or otherwise toreceive disclosures?

• Which agency/agencies shouldinvestigate disclosures?

• Should a new independent agency beestablished by legislation or otherwise toinvestigate complaints?

3.3 Public Disclosure in the First Instance

Should whistleblowers be allowed to discloseinformation to the public in the first instance? TheRoyal Commission noted this had been the subjectof some disagreement between the respectiverecommendations contained in EARC (1991) andthe Final Report of the Review of the Criminal Lawchaired by Sir Harry Gibbs (the Gibbs Committee)of December 1991.

EARC (1991) stated that its scheme would notafford protection for a person disclosinginformation to the media as this was the trade-offfor the scheme’s softening of the usually rigorousstandards which the law requires for substantiationof allegations of personal impropriety. The EARCReport (1991) said:

The recommended scheme, of course, would not diminishany person’s rights to disclose information to the media, butthat person must take their chances with the laws of the land,such as those relating to breach of confidence anddefamation, ... without the benefit of the protection whichwould be provided for disclosures which meet all theconditions of the proposed legislative scheme. (EARC,1991: 6.152)

The Gibbs Committee, on the other hand,recommended that if the whistleblower reasonablybelieved that the information disclosed evidence ofan indictable offence, a gross mismanagement orwaste of public funds or a substantial or specificdanger to public health or safety, then thewhistleblower should be protected when goingpublic against disciplinary sanction or retaliatoryaction. The whistleblower, however, would not beprotected against any other applicable lawsincluding defamation action.

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The Royal Commission was of the view that awhistleblowing scheme should not prevent thewhistleblower going public in the first instance.However, although the Royal Commissionconcluded that the common law right of awhistleblower to go public should not be removed,it was inconclusive as to whether any legislativeprotection should be provided in thosecircumstances.

The legislation of other Australian states does notspecifically prohibit public disclosure by thewhistleblower. However, most of these Acts providethat such action will not attract legislativeprotection.

Important Issues

• Should whistleblowers be allowed to gopublic in the first instance? If so, shouldthey be protected?

• If such a course is allowed should therebe any constraints on such action? If so,what should the constraints be?

• Is it a good idea to protect mediaorganisations and journalists if theypublish whistleblowers’ disclosures?

3.4 Defamation Laws

The Western Australian Law Reform Commissionin its report on defamation in October 1979concluded that:

there is a clear and demonstrated need for a review andreform of the law of defamation in Western Australia. (WALRC, 1979: 2.6)

For the last decade the issue of uniform defamationlaws has been under consideration by the StandingCommittee of Attorneys-General in Australia.

The Royal Commission stated that:

Of central importance in whistleblowing legislation are themeasures to protect the whistleblower from reprisal, whetherfrom harassment, intimidation and discrimination in theworkplace or otherwise, from civil actions for breach of

confidence or defamation, or from criminal and disciplinaryproceedings. (WA Royal Commission, 1992: II 4.7.12)

Since then the High Court has delivered twodecisions: Theophanous v The Herald & WeeklyTimes Ltd (1994) 124 ALR 1 and Stephens v WestAustralian Newspapers Ltd (1994) 124 ALR 80.These establish an implied freedom of speech in theCommonwealth Constitution with regard topolitical discussion and provide for a new defence,namely a qualified privilege to discuss andcommunicate political matters. This means incertain situations whistleblowers may now have adefence to defamation but may still facedisciplinary or criminal charges for breach ofsecrecy laws.

Whistleblowers are concerned about speaking outbecause of defamation laws which may result incrippling damages being awarded against them. Acourt may allow publication of confidentialinformation originally provided by a public servantin breach of his or her duty if the public interestoverrides the preservation of confidentiality.

Important Issues

• Do the laws of this State including thoseconcerning civil and criminal defamationand breach of confidence unreasonablyinhibit the disclosure of impropriety orcorruption in the Western Australianpublic sector?

• Do the defamation laws in this Stateprovide protection for those againstwhom false or mischievous allegationsare made?

• Should legislation be enacted whichwould protect a whistleblower fromsanctions, civil action or criminalprosecution and if so, in whatcircumstances should such protection beafforded?

• Should legislation protect a person’sright to take action when false ormischievous allegations are madeagainst them?

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of persons in the private sector that put publicfunds and government itself at risk (WA RoyalCommission, 1992: II 4.7.10). In addition, privatecontractors are being used more frequently todeliver government services. Private companies canalso behave in ways that endanger public health,safety and the environment. For these reasons thequestion of the extent to which a whistleblowingscheme is extended to cover the private sector isimportant.

Important Issues

• To what extent should a whistleblowingscheme for Western Australia beextended to cover the actions of peoplein the private sector and to permitwhistleblowing by people outside thepublic sector?

• Should the scheme be confined toinformation gained as an employee?

• Should whistleblowers be permitted todisclose the actions of private sectorcontractors doing government work?

3.8 Whistleblower Protection

The Royal Commission said it was essential that awhistleblower should have avenues through which tomake disclosure and be able to turn to an appropriateagency for counsel and protection against reprisal.By way of qualification the Royal Commissionadded that a person should not be entitled toprotection if a complaint is made which is known tobe false, or which is not made on reasonable grounds(WA Royal Commission, 1992: II 4.7.12).

Lennane (1993) reporting on a survey conductedlate in 1992 of whistleblowers who had contactedWhistleblowers Australia during the previoustwelve months said:

In their response organisations can use any number of staff,for as long as it takes, to wear the lone whistleblowerdown. Their aim seems to be to isolate whistleblowers asincompetent, disloyal, troublesome, mentally unbalanced,or ill; to force them to leave; to frighten and alienateworkmates and other supporters; and to avoid examining

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3.5 Reporting to Members of Parliament andParliamentary Committees

Persons appearing before parliamentary committeesare protected by parliamentary privilege. However,this would not normally extend to communicationsbetween a person and a member of parliamentoutside the formal protection of the parliamentarycommittee system. Further, it is not clear whatredress if any an individual has if victimised orharmed as a result of appearing before aparliamentary committee. Whilst the Parliament candiscipline a person for contempt of the Parliament,the protection of whistleblowers and awarding ofdamages by the Parliament is problematic.

Important Issues

• Should reporting to members ofparliament and/or parliamentarycommittees be part of any whistleblowerscheme introduced into WesternAustralia?

• If so, what protection should be includedfor people reporting to members ofparliament and/or parliamentarycommittees?

3.6 Secrecy Laws

The Royal Commission stated that whistleblowerlegislation must override the secrecy laws currentlyimposed on officials. The Commission onGovernment’s Discussion Paper No.1 gives adetailed overview of the State’s secrecy laws.

Important Issue

• Should whistleblower laws override thesecrecy laws currently imposed on officials?

3.7 The Private Sector

The Royal Commission highlighted that it is notonly officers in the public sector who may becomeaware of wrongdoing and that it can be the actions

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the issues they are complaining about. In the survey thishad mostly been achieved: the wrongdoing continued,while the whistleblowers were left discredited and in poorhealth and poverty with their careers in ruins. (Lennane,1993 : 669)

These experiences suggest the need for anindependent organisation capable of providingadvice, counselling, protection, investigation andtimely reporting to whistleblowers of the outcomeof investigations.

Important Issues

• What existing agency/agencies are bestplaced to counsel and protectwhistleblowers?

• Should the agency performing thecounselling role be the same as thatagency providing protection and/orinvestigating the whistleblower’sallegations?

• Should the identity of the whistleblowerbe kept secret?

• What provisions should be included in awhistleblowing scheme to preventvictimisation of whistleblowers?

• Should victimisation constitute anoffence and if so, what penalties shouldapply?

• Should there be a criminal offence ofunlawful reprisal against awhistleblower and, in the case of reprisalby a public officer, should there also bea disciplinary offence?

• Should there be provisions forwhistleblowers to be compensated or forrestoration of their former status if theyare victimised as a result of them havingblown the whistle?

• Should a whistleblower have a statutoryright of action to sue for damages and aright to seek financial compensation?

• Should financial rewards be paid forwhistleblowing ?

• Should protection be restricted to thosewho act in good faith?

• Should there be provision foranonymous disclosures?

• Should there be channels for confidentialdisclosure?

• To what extent should whistleblowers berequired to provide further evidence andassist with any investigation?

3.9 Protection for Those Against WhomAllegations Are Made

Having emphasised the need for protectivemeasures for whistleblowers, the RoyalCommission indicated whistleblower proceduresshould be designed to give reasonable protection topersons against whom allegations are made at leastuntil a prima facie case has been established.

Important Issues

• To what extent should a whistleblowingscheme for Western Australia protectthose against whom allegations are made?

• What safeguards should be put in placeto prevent false, malicious, mischievousor unsubstantiated complaints beingmade by whistleblowers?

• What penalties should there be for abuseof a whistleblowing scheme?

• Should any whistleblowing provisionscover action or behaviour which isalleged to have occurred prior to thelegislation being passed?

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4. SUMMARY

The Commission on Government has been asked toconsider what steps should be taken to introduce awhistleblowing scheme in this State.

Occasionally, concerned employees go to the mediato reveal conduct within their organisation whichthey strongly believe is wrong. In manycircumstances these same people may havecomplained to the management of the organisation,with a result that, although nothing is done torectify the problem raised, reprisals have been takenagainst the complainants and their careers ruined.

By going public, a whistleblower may beacknowledging that there is no reasonable avenueavailable within the organisation to rectify theproblem or, that a senior officer is the wrong-doer.To blow the whistle may result in not only reprisalsagainst the informers in their employment, but mayalso open up the possibility of legal action beingtaken against them which could be costly to defend.Although the whistleblower’s concerns have beengenuine, he or she may have been mistaken,resulting in irreparable damage to innocent peopleaccused of wrong-doing.

A number of whistleblowing schemes have beenestablished in other states of Australia andoverseas. Most of the schemes elsewhere inAustralia have identified the type of informationwhich should be disclosed in the public interest,namely health, safety and environmental matters aswell as misuse of public funds. In these cases theright to blow the whistle has been applied to thepublic sector only, with an extension to the privatesector in limited cases. Each scheme varies as tohow it operates depending upon what agenciesalready exist in the relevant state, as well as theperceived extent of the problem any scheme isdesigned to alleviate.

Part II OFFICIAL CORRUPTIONCOMMISSION

1 INTRODUCTION

The Commission on Government (COG) has beenasked to inquire into and report on Specified MatterNo. 13:

The appropriate role, powers and functions of the OfficialCorruption Commission for the prevention and exposure ofimpropriety or corruption within the public sector withconsideration given to the respective roles of other agenciesand legislation.

During the 1980s official corruption involvingministers, police, judicial officers and other publicofficials was alleged and/or exposed acrossAustralia. In response a number of Australianstates established bodies to receive complaintsconcerning official corruption so that effectiveindependent investigation was carried out and ameasure of protection provided for informers. TheIndependent Commission Against Corruption(ICAC) was established in New South Wales inMarch 1989, Western Australia’s OfficialCorruption Commission (OCC) in August 1989,and the Queensland Criminal Justice Commission(CJC) in November 1989.

Whilst the organisations established in New SouthWales and Queensland are large and costly, theOCC in Western Australia is a very small bodyestablished at relatively little expense to provide anavenue for people to furnish information concerningofficial corruption. The information is forwarded onto appropriate investigatory bodies when theCommission is of the opinion the matter should beso referred.

The ICAC Act was reviewed in 1993 by the NewSouth Wales Parliamentary Joint Committee on theICAC (NSW Committee on the ICAC, 1993). Thereview followed the Court of Appeal’s decision inthe Greiner case. There were amendments to thelegislation in 1994 but the role of the ICAC remainslargely unchanged.

Section 10 of the Protected Disclosures Act 1994(NSW) protects disclosures by public officials tothe ICAC that show or tend to show that a publicauthority or another public official has engaged, is

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engaged or proposes to engage in corrupt conduct.However, information provided to a WhistleblowersAustralia survey based on sixteen people who hadtaken complaints of corrupt conduct to the ICACbetween January 1990 and August 1994 showed anextraordinary low level of satisfaction with itsperformance (Lennane and Karpinski, 1995).

In February, 1995, the Queensland ParliamentaryCriminal Justice Committee reported on its reviewof the CJC. The comprehensive Report proposed anew structure for the CJC, which the Committeebelieved would improve the organisation andeconomise resources (Qld Criminal JusticeCommittee, 1995: vii).

2 WESTERN AUSTRALIAN CONTEXT

The Official Corruption Commission Bill 1988 wasintroduced as a Private Member’s Bill by the lateHon. Andrew Mensaros, MLA, in May 1988. In hissecond reading speech Mr Mensaros stated that thepurpose of the OCC was not to investigate crimebut to bring the perpetrators of official corruptionto justice. Mr Mensaros also said:

the Bill intends to create a situation where peopleobserving official corruption have an opportunity to reportit discreetly, without putting their jobs - their employment,hence their livelihood - on the line. (WAPD, Assembly,1988: 1735)

The OCC Act was assented to on 8 December 1988and came into operation after proclamation on 11August 1989.

Between late 1991 and the end of 1992 a number ofsteps were taken to strengthen the legislation:

• The OCC Act was amended in December 1991by the Official Corruption CommissionAmendment Act 1991 which enabled theCommission to report to Parliament.

• In late 1991 the Select Committee on theOfficial Corruption Commission Act wasestablished by the Legislative Assembly toinquire into and report on the adequacy of theOCC Act.

• The WA Select Committee on the OCC Actreported in March 1992.

• In May 1992 a further Select Committee wasestablished to consider the recommendationscontained in the Report of the WA SelectCommittee on the OCC Act and to recommend:

• legislation to give effect to thoserecommendations; and

• terms of reference for a Joint StandingCommittee on official corruption.

• The Select Committee on the OfficialCorruption Recommendations reported inSeptember 1992.

The draft Bill prepared by the WA SelectCommittee on the Official CorruptionRecommendations included provisions for:

• the extension of matters that come within theCommission’s jurisdiction;

• the Commission to be able to make preliminaryenquiries to decide whether to refer a matter forinvestigation; and

• any person to report suspected officialcorruption to the Commission despite any dutyof secrecy or other restriction on disclosureimposed under a written law.

The draft Bill prepared by the WA SelectCommittee on the Official CorruptionRecommendations formed the basis of the ActsAmendment (Official Corruption Commission) Act1994 which came into force on 24 May 1994.

The Royal Commission described the draft Bill as:‘narrow in its scope and effect’ (WA RoyalCommission, 1992: II 4.9.9).

The OCC Act does not define corruption but ratherrelies on the listing of offences in relevant sectionsof The Criminal Code to describe the matterswhich come within the OCC’s jurisdiction. TheRoyal Commission suggested these offences shouldbe referred to as official corruption. In addition theRoyal Commission suggested there was a need toaddress instances of improper conduct that did notconstitute criminal corruption.

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The Royal Commission recommended that a newoffice of Commissioner for the Investigation ofCorrupt and Improper Conduct (CICIC) beestablished. The Royal Commission said:

the proposed Commissioner should possess wider powers,enabling him or her to deal not only with narrowly definedofficial corruption, but also with improper conduct bypublic officials. The proposed Commissioner should alsobe concerned with preventive and educative measuresdesigned to combat corrupt and improper conduct. In otherwords, the body we propose has a significantly broaderfunction than the existing OCC. The office should becomeone of the primary independent parliamentary agencies ofthe State. (WA Royal Commission, 1992: II 4.9.9)

The purpose of this office would be to provide thepeople of Western Australia with a body havingpowers to receive complaints about officialcorruption and also to deal with improper conductwhich the Royal Commission recommended bedefined as:

(i) any conduct of any person (whether or not a publicofficial) that adversely affects, or could adversely affect,either directly or indirectly, the honest or impartial exerciseof official functions by any public official, any group orbody of public officials or any public authority;

(ii) any conduct of a public official or former publicofficial that constitutes or involves the dishonest or partialexercise of any of his or her official functions;

(iii) any conduct of a public official or former publicofficial that constitutes or involves a gross departure fromthe standards of administration which the public is entitledto expect; or

(iv) any conduct of a public official or former publicofficial that involves the misuse of information or materialthat he or she has acquired in the course of his or herofficial functions, whether or not for his or her own benefitor for the benefit of any other person. (WA RoyalCommission, 1992: II Appendix 2)

Other recommendations of the Royal Commissionthat are relevant to Specified Matter No. 13included the introduction of a Public SectorManagement Act and the establishment of the officeof Commissioner for Public Sector Standards (WARoyal Commission, 1992: II 6.2). Both of theseproposals have now been implemented. Thefunctions of the Commissioner for Public SectorStandards are set out at s.21 of the Public SectorManagement Act 1994 and include establishing

public sector standards of merit, equity and probityin human resource management, establishing codesof ethics, assisting public sector bodies to develop,amend or repeal codes of conduct and monitoringcompliance with those standards and codes.

On 12 June 1995, the Commissioner for PublicSector Standards issued draft public sectorstandards of merit, equity and probity in humanresource management for comment with a view togazettal of the final standards in August 1995.

Some deficiencies in the Public SectorManagement Act 1994 have already been identifiedby Doig (1995) who recently reported on issuesrelating to the transfer of two officers from theHealth Department and the transfer andreinstatement of an officer from the HealthcareLinen Service of the Health Department.

The Royal Commission did not recommend that theCommissioner for Public Sector Standards be givenenforcement powers but rather the functions ofestablishing standards and then monitoring,investigating and reporting on compliance withthose standards. As a result, the Commissioner forPublic Sector Standards is not empowered norresponsible for enforcing compliance withstandards.

In this context Doig has highlighted a difficulty ininterpreting s.8(2) of the Public SectorManagement Act 1994 which requires departmentalemploying authorities to act independently inmatters relating to:

(a) the selection, appointment, transfer,secondment, classification, remuneration,redeployment, redundancy or termination ofemployment of an individual employee; or

(b) the classification of a particular office, post orposition.

In his report Doig said:

On a strict interpretation of section 8(2) it is possible toargue that it is open to a Minister to give a direction butthat the Chief Executive Officer is duty bound to actindependently. However I am not convinced that this waswhat was intended. The intention seems to have beenaimed at preventing the political manipulation of

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appointments, transfers and promotions in the publicsector. If that assumption is correct, then the section shouldhave provided that no-one should be able to direct orinfluence decisions in relation to appointments, transfersetc. and that the CEO should act independently. (Doig,1995: 4.8)


3.1 Defining Behaviour of Public OfficialsThat Does Not Meet Public SectorStandards

Adopting a simple term like improper conduct todescribe all behaviour by public officials that doesnot meet public sector standards may helpovercome findings like those in the recent StateSupply Commission Report (1995) which stated atpage 4 that:

there has [sic] been breaches of both supply policies anddevolved purchasing authority

and then at page 11

proper process has not been followed.

The report concluded that ‘[w]hilst the correctprocess has not been followed and the purchasingdelegation exceeded, there has not been anyevidence to suggest impropriety’ (State SupplyCommission, 1995).

One of the principal functions of ICAC is toinvestigate allegations of corrupt conduct for thepurposes of the Independent Commission AgainstCorruption Act 1988 (NSW). Corrupt conduct isdefined in that Act and includes:

• conduct of a person which adversely affects thehonest or impartial exercise of official functionsby a public official;

• conduct of a public official which constitutes orinvolves dishonest or partial exercise of hisofficial functions, or breach of public trust;

• or involves the misuse of information ormaterial acquired in the course of officialfunctions.

In addition, corrupt conduct is any conduct of a

person that adversely affects the exercise of officialfunctions involving matters under the NSW crimeslegislation of that State such as bribery, officialmisconduct, theft, fraud or violence. But thedefinition is limited by s.9 so that any such conductmust constitute a criminal offence, a disciplinaryoffence, or reasonable grounds for terminating theservices of the public official.

The Criminal Justice Act 1989 (Qld) uses the term‘official misconduct’ which is defined in detail inthe legislation and encompasses the concepts of‘official corruption’ and ‘improper conduct’ asdefined by the Royal Commission.

Whilst the Royal Commission made a distinctionbetween official corruption and improper conduct,it may be useful to define all behaviour thatbreaches public sector standards or encourages thebreach of public sector standards as improperconduct. Under such a definition, what the RoyalCommission called official corruption, would be aserious category of improper conduct.

Improper conduct would then cover a whole rangeof unacceptable behaviour by public officialsincluding crimes, other unlawful activity, breachesof codes of ethics and conduct and disciplinaryoffences. The term would also extend to thebehaviour of persons, whether they be publicofficers or not, who encourage public officers tobreach public sector standards.

Despite the suggestion about the term improperconduct, for the sake of consistency in theremainder of this Discussion Paper, the separateterms impropriety and corruption appearing inSpecified Matter 13 are used when discussing theWestern Australian Public Sector.

Important Issue

• How should behaviour which breachespublic sector standards be defined?

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3.2 What is the Extent of Impropriety andCorruption in the WA Public Sector?

The Royal Commission said ‘[i]n Part I of thisreport we noted that there had been comparativelylittle evidence of illegal or corrupt conduct’ in thisState (WA Royal Commission, 1992: II 4.9.1).However, the Royal Commission was concernedabout the level of what it defined as ‘improperconduct’ and what is referred to in Specified Matter13 as ‘impropriety’. Currently, no consistentdefinition of this unacceptable behaviour exists andsystems to deal with it are unclear. As a resultreliable statistics on the extent of impropriety inWestern Australia are not available.

A Royal Commission Prosecutions Division wasestablished by the Western Australian Director ofPublic Prosecutions (DPP) in November 1992 tofurther investigate and determine theappropriateness of laying charges arising from theRoyal Commission. The DPP was provided with aconfidential Appendix 1 and further materialreferred by the Royal Commission for hisconsideration, together with additional informationwhich did not directly come within the RoyalCommission’s terms of reference. As noted by theRoyal Commission and indicative from the chargesalready laid by the DPP, although there wascorruption in the form of breaches of the CriminalCode in this State’s public sector, it does not appearto be endemic.

In the OCC Annual Report for the year ended 30June 1994 the Commission noted the number ofallegations received in the preceding three yearswhich are summarised in Table 1 hereunder.

Table 1. Allegations of Official CorruptionReceived by the OCC 1991-94 (OCC, 1994)

1991-92 1992-93 1993-94

33 29 19

At the time of publication figures are not availableto indicate whether amendments to the OCC Actthat came into force on 24 May 1994 have had anyapparent effect on the numbers or nature ofcomplaints received.

In 1992 the Commissioner of Police providedstatistics which were published in the WA SelectCommittee on the OCC Act Report (1992). Theseare presented in Table 2 below.

Table 2. Complaints of Official CorruptionReceived by the Police 1983-92

* The Commissioner of Police added that the1991 and 1992 complaints were largely related tomatters then [1992] before the Royal Commissionand still under investigation.

Additional summary information provided by theCommissioner of Police to the WA SelectCommittee on the OCC Act indicated that fourteenmatters referred to him by the OCC between 1989and 1992 consisted of:

• where there was no supporting evidence 8• where the information was inaccurate or false 2• where there was insufficient evidence 1• nolle prosequi bill entered by the Crown 1• which [had] gone to trial 1• which [was] still under investigation 1

Secrecy provisions in the OCC Act have preventeddetail of allegations being included in the OCC'sannual reports making it difficult to assess theseriousness and extent of the complaints made tothe OCC. Recent changes to the Act should nowallow the OCC to provide details of the type ofoffences complained of so that a better view of theextent of the corruption in this State's public sectormay be gauged. However, as the OCC’s functions

Number ofProsecutions

21--3274-*-*19

Number of Complaintsto Police RegardingOfficial Corruption

511--7214102455

Year

1983198419851986198719881989199019911992 (to Feb 17)

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do not cover improper conduct as defined by theRoyal Commission, a clear assessment of improperconduct and official corruption within the publicsector is not possible.

Important Issue

• Do the Tables above reflect the level ofcorruption in Western Australia?

3.3 Should the Official Corruption CommissionContinue in its Present Form?

The OCC Act was the subject of review by aParliamentary Select Committee in 1992, and as aresult, amendments were made to the legislation in1994. When the OCC reports later in 1995 on thepreceding year’s activities the effect of thoseamendments may be apparent.

As already noted New South Wales and Queenslandhave relatively large organisations set up to receivecomplaints about official corruption, to investigatethose complaints and to perform corruptionprevention activities. These are similar bodies to theHong Kong Independent Commission AgainstCorruption which was established in 1974.

The Select Committee on the OCC Act was of theview that Western Australia did not need anexpensive commission such as those that exist inNew South Wales and Queensland. Instead, itrecommended modest changes to the OCC Act (WASelect Committee on the OCC Act, 1992).

This was in keeping with the concept of the originalAct which gave the OCC the role of receivingcomplaints and where the OCC thought complaintshad substance, referring the matters on to a relevantbody for investigation.

Should the existing OCC continue in its presentform, be strengthened to become a body similar tothat proposed by the Royal Commission, or beabolished? A larger body more like the ICAC inNew South Wales or the CJC in Queensland, couldbe established to investigate official corruption andimproper conduct in Western Australia. The costsof such bodies are considerable. In June 1994

ICAC employed 123 staff and total expenses during1993-94 were $13 million (NSW ICAC, 1994). InJuly 1994 the Official Misconduct Division of theCJC comprised 132 staff and was allocatedapproximately 50% of the resources of theCommission. The Commission estimated theDivision would cost $8 million in 1994-95 (QldCriminal Justice Committee, 1995).

Important Issues

• Should the Official CorruptionCommission continue in its presentform, be strengthened or be abolished?Alternatively, should a completely newbody be established, and if so, howshould it be constituted?

• Should the Official CorruptionCommission’s mandate be extended toinclude impropriety?

• If so, how should impropriety bedefined?

• Should the Official CorruptionCommission be an investigatory body?

• Is the current Official CorruptionCommission legislation adequate?

3.4 Prevention of Impropriety andCorruption

The OCC is but one of a number of existingagencies which have a role to play in the State’saccountability framework. The Royal Commissionidentified what it called independent parliamentaryagencies, for example, the then proposed PublicSector Standards Commissioner (now appointed),the Auditor General, and the ElectoralCommissioner. Matters relating to the AuditorGeneral and the Financial Administration andAudit Act 1985 are the specific subject of theCommission on Government’s Discussion PaperNo.2 on Specified Matters Nos 3 and 6.

There are many other agencies who play a role inexposing improper conduct and official corruption.

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Each agency has functions mostly specified inlegislation, together with powers to enableperformance of those functions.

For example, the DPP is concerned with all aspectsof the prosecution of indictable offences in thisState and has ancillary functions of extradition andproceeds of crime and penalty recovery.

The Commissioner of Police is responsible for themanagement and discipline of the Police Force andthe Force is responsible for the investigation, arrest,laying of charges and prosecution of summaryoffences.

The State Ombudsman and the Deputy StateOmbudsman are responsible for the investigation ofany decision or recommendation that relates to amatter of administration by an agency under theOmbudsman’s jurisdiction, including the PoliceForce, and report or make recommendations inspecified circumstances.

The overall effectiveness and efficiency of thepublic sector is the responsibility of the Minister forPublic Sector Management. Although theCommissioner for Public Sector Standards has theresponsibility for establishing standards, it is theemploying authority who has the power to enforcethose standards. For departments this is generallythe chief executive officer.

The Information Commissioner deals withcomplaints made about decisions of agencies inrespect of access applications and applications foramendment to personal information.

The Commissioner for Equal Opportunityinvestigates and conciliates complaints of unlawfuldiscrimination. The Director of Equal Opportunityin Public Employment helps public authoritiesdevelop management plans to eliminatediscrimination in employment and promote equalopportunity and evaluates and reports on thoseplans.

Parliamentary committees also play an importantrole. This role is canvassed more thoroughly in theCommission on Government’s Discussion PaperNo. 8 on Specified Matters Nos 17 and 18.

Any discussion of the role of the OCC shouldtherefore take into account the role of parliamentarycommittees and each of the agencies mentionedabove. It is also important for there to be anexamination of the legislation that governs theoperations of these independent accountabilityagencies.

There is clearly a perceived need for education tosensitise public officials to the requirement that theyuphold the highest ethical standards. Each agencyhas a role to play in establishing an ethical culturefor its own employees. In addition, theCommissioner for Public Sector Standards isresponsible for setting standards and monitoringcompliance, but it may be necessary to supplementthe role by expressly providing for an agency toimplement other very specific corruption preventionstrategies.

Important Issues

• Are the existing roles of the independentaccountability agencies in this Stateappropriate for the proper and effectiveprevention, detection, investigation andminimisation of impropriety andcorruption in Western Australia?

• Should the Official CorruptionCommission have a role to play incorruption prevention and education?

• Should another body undertake this role?

• Is there a need for other corruptionprevention activities?

3.5 Public Exposure of Impropriety andCorruption

Another issue that warrants consideration is theextent to which impropriety and corruption shouldbe publicly exposed. Currently the OCC is boundby secrecy laws and only in exceptionalcircumstances, when either House of the Parliamenthas first agreed, can matters be published (OCCAct: s.7(B)).

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Important Issues

• To what extent should impropriety orcorruption be publicly exposed?

• Should the Official CorruptionCommission be involved in publiclyexposing impropriety or corruption?

3.6 Accountability Agencies

Improper actions by the holders of the mostimportant offices in the State’s constitutionalsystem are matters to be dealt with by parliament.These offices include judges, ministers, andmembers of parliament themselves. Parliamentmust also be involved in any action to remove thosewho head such independent accountability agenciesas:

• Auditor General• Commissioner for Equal Opportunity• Commissioner for Public Sector Standards• Commissioner of Police• Director of Equal Opportunity in Public

Employment• Director of Public Prosecutions• Electoral Commissioner and Deputy Electoral

Commissioner• Information Commissioner• Ombudsman and Deputy Ombudsman

It may be appropriate to establish a body to assistparliament in the investigation of allegations ofimproper conduct by holders of these offices. Thebody would act only on the instruction ofparliament, would be responsible solely for theinvestigation of matters of fact. It would report itsfindings to parliament. Any judgment on the extentand nature of improper activities, and any decisionon the appropriate action to be taken would remainthe responsibility of parliament.

Important Issues

• Should there be an authority to assistParliament in the investigation ofcomplaints of impropriety or corruptionmade against members of Parliament,the Executive, the Judiciary orindependent accountability agencies suchas the Auditor General?

• If so, how should that authority beconstituted?

3.7 Complaints Against Police

In his 1993-94 Annual Report the DPP made thefollowing comment in relation to the Police Force:

There is an urgent need to change management practiceswithin the CIB and to alter and rectify unacceptable partsof the police culture where silence and support formiscreants is practised. Unless this is done, the State willhave a significant problem of corruption which will bedifficult or impossible to eradicate. Although the greatmajority of police are decent and honest, a corrupt few canpresently shelter behind a code of silence. (WA DPP, 1994)

In Western Australia complaints against police aremade either to the Commissioner of Police or theState Ombudsman. The investigation of suchcomplaints is carried out by the police themselves.New procedures, which became fully operational inOctober 1993, provide for the State Ombudsman tohave access to all completed police investigations.This is for the purpose of the Ombudsmanassessing the adequacy of those investigations,prior to the complainant being advised of theoutcome. However, in practice only a selection ofthe more serious cases are assessed.In his 1994 Annual Report the State Ombudsmanrecommended two further elements that heconsiders necessary for an effective system ofhandling police complaints. He said these are:

oversight, by my office, of current police investigations intothe more serious complaints; and power for me to carry outdirect primary investigations of complaints, on publicinterest grounds, without the need for the Commissioner ofPolice to have carried out an investigation first.(WAOmbudsman, 1994: 35)

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In some other states of Australia the policedepartment and the police force are overseen by aboard rather than only the commissioner of police.In addition to the Ombudsman, other states haveseparate bodies for the receipt of complaints againstmembers of the police force and more particularlythe determination of discipline. It may be that aseparate agency is not needed in this State toinvestigate complaints regarding the police. Thisissue raises the question as to whether the OCCshould be involved in the investigation of seriouscomplaints against the police, especially those thatmay involve systemic corruption or links toorganised crime.

Important Issue

• Should the Official CorruptionCommission or some other body beinvolved in the investigation of seriouscomplaints against the police?

4 SUMMARY

Specified Matter 13 refers to the terms improprietyor corruption within the public sector. Whilst theRoyal Commission made a distinction betweenofficial corruption and improper conduct, it may beuseful to define improper conduct to cover allunacceptable behaviour by public officialsincluding crimes, illegal actions, breaches of codesof conduct and ethics and disciplinary matters.

Currently, there is a lack of consistent definition ofimproper conduct. This inconsistency, together withthe different roles of accountability agencies withinthis State and secrecy provisions in the OCC Act,make it difficult to determine the extent ofimpropriety or corruption in Western Australia.

The Royal Commission saw the need for anorganisation to investigate complaints made aboutimproper and corrupt conduct in the public sector.The Official Corruption Commission hasjurisdiction only in complaints of corrupt conductand submissions to the Royal Commissionsuggested that, because the Official CorruptionCommission did not investigate such matters itself,it was little more than a postbox. The OCC Act has

been amended since then, although not expanded todeal with improper conduct, and is still referred toby some of its critics as a toothless tiger.

In addition, there may be a case for a body to assistparliament in its investigation of allegations ofimproper conduct by members of parliament, theExecutive, the Judiciary and independentaccountability agencies.

The State Ombudsman and the Commissioner ofPolice are responsible for dealing with complaintsabout the police in Western Australia. However, theState Ombudsman has indicated he requires furtherpowers to more effectively carry out his watchdogrole. This Commission would welcome submissionson whether these and further measures areconsidered necessary to expose and preventcorruption in the public sector, including the policeforce.

Experience with the OCC Act since theamendments in 1994 is brief and the secrecyprovisions of the OCC Act make it difficult toassess the effectiveness of the Official CorruptionCommission and therefore any comments that mayhelp to assess the appropriateness of the changesthat were made and suggestions for furtherimprovement will be of particular interest.

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REFERENCES

Commonwealth of Australia, Senate SelectCommittee on Public Interest Whistleblowing(Senate Select Committee on PIW) (1994) In thePublic Interest Canberra: Senate Printing Unit

Cripps, Yvonne (1986) The Legal Implications ofDisclosure in the Public Interest: An Analysis ofProhibitions and Protections with ParticularReference to Employers and Employees Oxford:ESC Publishing Ltd

De Maria, William and Cyrelle Jan (1994)University of Queensland Department of SocialWork and Social Policy Wounded WorkersBrisbane: University of Queensland

Langford, John W. (1990) ‘The InternationalExample: Reflections on the Way Ahead’in Do unto others Ethics in the Public SectorQueensland: Royal Institute of PublicAdministration Australia (Queensland Division),Electoral and Administrative Review Commissionand the University of Queensland Department ofGovernment

Lennane, K. Jean (1993) ‘Whistleblowing: a HealthIssue’ British Medical Journal 307: 667-670

Lennane, K. Jean and Stan Karpinski (1995)Results of a Consumer Evaluation of theIndependent Commission Against CorruptionWhistleblowers Australia (Unpublished Report)

Moore, Bruce (ed.) (1993) The Australian PocketOxford Dictionary Melbourne: Oxford UniversityPress Australia

New South Wales, Independent CommissionAgainst Corruption (NSW ICAC) (1994) AnnualReport Sydney

New South Wales, Parliamentary Joint Committeeon the Independent Commission Against Corruption(NSW Committee on the ICAC) (1993) Review ofthe ICAC Act Sydney

Peachment, Allan (ed.) (1995) Westminster Inc.:A Survey of Three States in the 1980s New SouthWales: The Federation Press

Queensland, Electoral and Administrative ReviewCommission (EARC) (1991) Report on Protectionof Whistleblowers Brisbane

Queensland, Parliamentary Criminal JusticeCommittee (Qld Criminal Justice Committee)(1995) Report No. 26 Brisbane

Roberts, Greg (1994) ‘Tell and be Damned’ TheBulletin 4 October 1994 Sydney: ACP PublishingPty Ltd

Western Australia, Legislative Assembly SelectCommittee on the Official Corruption CommissionAct (WA Select Committee on OCC Act) (1992)Report Perth

Western Australia, Legislative Assembly SelectCommittee on the Official CorruptionRecommendations (WA Select Committee on OCRecommendations) (1992) Report Perth

Western Australia, Office of the Director of PublicProsecutions (DPP) (1994) 1993-94 AnnualReport Perth

Western Australia, Official Corruption Commission(OCC) (1994) 1993-94 Annual Report Perth

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportPart II Perth

Western Australia, Law Reform Commission ofWestern Australia (WA LRC) (1979) Report onDefamation Perth

Western Australia, Doig, Donald G. (1995)Investigation by Donald G. Doig under s.24 intoCertain Matters Affecting the Health DepartmentPerth

Western Australia, State Supply Commission(1995) Review of the Process for Letting theStateships Stevedoring Contract Perth

Western Australia, Parliamentary Commissioner forAdministrative Investigations (WA Ombudsman)(1994) 1994 Annual Report Perth

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LEGISLATION

Acts Amendment (Official CorruptionCommission) Act 1994

Bill 117 (Ontario)

Civil Service Reform Act 1978 (USA)

Criminal Justice Act 1989 (Qld)

Independent Commission Against Corruption Act1988 (NSW)


Official Corruption Commission Amendment Act1991

Protected Disclosures Act 1994 (NSW)

Public Sector Management Act 1994 (ACT)


Whistleblowers Protection Act 1993 (SA)

Whistleblowers Protection Act 1994 (Qld)

Whistleblowers Protection Act 1989 (USA)(Federal)

Whistleblowers Protection Bill 1994 (NZ)

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SUMMARY OF ACRONYMS

CICIC Commissioner for the Investigation of Corrupt and Improper Conduct

CJC Queensland Criminal Justice Commission

DPP Western Australian Director of Public Prosecutions

EARC Queensland Electoral and Administrative Review Commission

ICAC New South Wales Independent Commission Against Corruption

OCC Official Corruption Commission

OCC Act Official Corruption Commission Act 1988

Qld Criminal Justice Committee Queensland Parliamentary Criminal Justice Committee

Royal Commission Western Australian Royal Commission into the Commercial Activitiesof Government and Other Matters, 1992

Senate Select Committee on PIW Senate Select Committee on Public Interest Whistleblowing

State Ombudsman Parliamentary Commissioner for Administrative Investigations

WA LRC Law Reform Commission of Western Australia

WAPD Western Australian Parliamentary Debates

WA Select Committee on theOCC Act Legislative Assembly Select Committee on the Official Corruption

Commission Act

WA Select Committee on theOfficial CorruptionRecommendations Legislative Assembly Select Committee on the Official Corruption

Recommendations

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PREFACE

The Commission on Government’s functions includeinquiring into 24 Specified Matters if and to theextent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of parliament.The Commission may also inquire into other mattersit considers relevant to the prevention of corrupt,illegal or improper conduct in the public sector.

The Specified Matters, which are set out in the FirstSchedule of the Commission on Government Act1994, provide the initial focus of the Commission’sinquiries. The relevant issues, however, cannot beaddressed in a vacuum. The Commission wishes toencourage a proper understanding of the issues andof the competing arguments for and against change.This applies also to any matters which may becomepart of the Commission’s inquiries. We haveconcluded that it is necessary to address the contextin which the Specified Matters have arisen, thehistorical, contemporary and topical circumstancesand events which surround them and their relevancefor the future.



This paper deals with Specified Matter 20concerning donations and contributions to politicalparties and candidates. It also discusses SpecifiedMatter 21, which is about expenditure by partiesand candidates on elections and other matters ofpolitical finance.

The initial task of the Commission is to inquire intothese matters from the viewpoint of preventing corrupt,illegal or improper conduct in the public sector.

This paper identifies some of the issues which maybe relevant to the Commission’s task and provides

background information. The issues identified andinformation provided are not intended to beexhaustive. Submissions may address any otherrelevant matters.


SUBMISSIONS



FORMAT


(a) are legible, and preferably machine-typed withsingle line spacing;(b) use headings and sub-headings;(c) have numbered pages;(d) clearly identify the author by showing name,address and telephone number; and(e) are bound together with a staple or secured witha paper clip and are on A4 standard sized paper;


CONTENT


1. SUMMARY – this should be a very briefoutline of the specific matter you are addressing,your concerns and what you are proposing. Clearlystate which Specified Matter you are addressing.

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2.1 The Current Situation of DisclosureLaws in Western Australia


3.1 Analysis of the Electoral Amendment(Political Finance) Act 1992

3.2 Thresholds Limits: MinimumAmount of Donations and MultipleDonations

3.3 Limitations on Who Can MakeDonations

3.4 Uniform Legislation3.5 Who Should be Allowed to Raise

Funds?

Part II DISCLOSURE OFELECTORAL EXPENDITURE

1 INTRODUCTION



3.1 A Definition of Electoral Expenditure3.2 Disclosure of Administrative

Expenditure3.3 Disclosure of Electoral Expenditure

by Interest Groups3.4 Disclosure by Broadcasters and

Publishers

Part III OTHER MATTERS OFPOLITICAL FINANCE


1.1 Processes Applying to Disclosure1.2 Administration, Enforcement and

Penalties1.3 Limits on Electoral Expenditure1.4 Public Funding of Candidates and

Parties1.5 Local Government

SUMMARY

REFERENCES

2. SUBMISSION/ARGUMENT – in this sectionyou can expand on your concerns about the issuesthat you are addressing, outlining how you willback this up with factual material and argumentwhich support your views.

3. SUPPORTING MATERIAL – here youpresent any material, item by item, referring to howeach item supports your argument. This may takethe form of examples of actual events, copies ofdocuments, or any other evidence relevant to yoursubmission.

4. RECOMMENDATIONS – you need toclearly present your recommendations addressingthe concerns identified by your submission. Theyshould be listed in order of importance and numbered:



CONTENTS

GENERAL INTRODUCTION

Part I DISCLOSURE OF POLITICALDONATIONS

1 INTRODUCTION


ISBN 0 7309 6907 XCopyright Commission on GovernmentJuly 1995

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GENERAL INTRODUCTION

Modern election campaigns are an expensivebusiness. The cost of television advertising andother forms of promotion can put campaign budgetsfor the major political parties into the millions ofdollars. Political parties and candidates need toraise large sums of money to run effectivecampaigns. The link between the need to raise, andspend, large amounts of money, and the obligationsthis can create, has the potential for corruption. Thedisclosure of political donations and electoralexpenditure is one way to reduce the potential forcorruption of the electoral process. It attempts tostop individuals, groups and political parties frombuying and selling political favours.

There is also a need to protect the privacy of donorswho do not seek to influence the process, butsimply wish to show their support for a particularparty or candidate. Linked to the issue of privacy, isthe concept of freedom of association. In ademocracy, people have the right to communicateand form organisations with other members of thecommunity. Political parties are in essence privateorganisations and onerous disclosure requirementsmay limit the activities of these groups in such away as would impinge on their right to the freedomof association. Political parties could, however, beseen as private groups with public aims. Parties andcandidates operate to seek to influence and formgovernment.

If political parties and candidates are seeking toinfluence and form government, there is a strongargument that the public has a right to know aboutthe factors that may influence them. Disclosure ofthese activities would allow voters to make a moreinformed choice and deter parties and candidatesfrom giving improper undertakings. In any schemeregulating matters of political finance, a balanceneeds to be struck between the freedom ofassociation and the public’s right to know about theactivities of political parties and other groups whoseek to influence the political and electoral process.

Political finance can be divided into two broadareas. Firstly, political donations which can bedefined as money, or gifts in kind, given to politicalparties, candidates and interest groups involved inthe electoral process. It may also include donations

made on behalf of another person or group.Secondly, electoral expenditure can be defined asmoney spent by, or on behalf of, individuals orgroups in promoting or opposing a candidate orparty standing for election. The important issuesthat this paper raises are: what parts of acandidate’s or party’s financial affairs should beopen to public scrutiny and what other measurescan be taken to enhance public confidence in thepolitical and electoral processes. The issues ofgovernment advertising during an election period,the pecuniary interest of members of parliament andsenior public officials, and travel by governmentofficials during election periods, will be dealt within future discussion papers.

This paper looks primarily at the laws regulatingpolitical finance. The regulation of political financeshould ensure ‘that money and resources used inrelation to political competition, enhance ratherthan detract from the democratic process’. (NewZealand, Royal Commission on the ElectoralSystem, 1986)

This paper will examine Specified Matters numbers20 and 21 which are:

20. The disclosure of political donations andcontributions.

21. The disclosure of electoral expenditure, and suchother measures relating to political finance as mayenhance the integrity of the system of representativegovernment.

In discussing these matters, the paper will examinethe following issues:

• disclosure of political donations;

• limits on the size and source of donations;

• disclosure of electoral expenditure;

• limits on electoral expenditure; and

• public funding of elections.

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Part I DISCLOSURE OF POLITICALDONATIONS

1 INTRODUCTION

Supporters of disclosure say that it deters attemptsby parties, politicians and other participants in theelectoral process to trade preferential treatment forelection funds. Donations that are not made publichave the potential to corrupt the political process.Full disclosure is one way of reducing this potentialand enhancing public confidence in the politicalprocess by informing voters about who is financinga political party. Disclosure ensures publicknowledge and enables the public, and thereforevoters, to determine the propriety of donationswhich might have the potential, because of theirsize, to influence a decision of a member ofparliament. Disclosure may also serve todiscourage donations from unsavoury sources.Experience in other countries and in Australia atboth State and Commonwealth level has shown thatit is difficult to make disclosure legislationwatertight. Disclosure laws, however, serve as astrong signal to a participant in the political processthat their actions should be open and accountable.

Opponents of disclosure laws argue that disclosurewould not achieve the objective of minimising therisk of corruption or undue influence. There willalways be those who will try to evade legalregulation and there can never be watertightlegislation put in place. They argue that disclosurelaws fail to take into account privacy considerationsof the donor. To compel political parties to disclosethe identity of their donors, critics argue, violatesthe individual’s right to privacy and may even leadto adverse acts against them. Supporters ofdisclosure regard privacy considerations assecondary to the need to deter undue influence(Tasmania, An Attempt to Bribe a Member, 1991).Another concern is that disclosure laws adverselyimpact on the ability of political parties to raisefunds.


2.1 The Current Situation of DisclosureLaws in Western Australia

At present there are no laws in force in WesternAustralia requiring public disclosure of politicaldonations to parties and candidates contesting Stateelections. In 1992, the Western AustralianParliament passed the Electoral Amendment(Political Finance) Act (PFA) which requires thedisclosure of political donations and contributions.Due to problems with the section of the PFAdealing with government advertising, the PFA is yetto be proclaimed. This means that the legislation isnot in force. This issue of government advertisingduring election periods will be dealt with in a laterdiscussion paper. This paper deals, in part, withsections 4 and 7 of the PFA relating to thedisclosure of political donations and the protectionof political liberty.

Disclosure is, however, required for State basedparties and candidates involved in Federal elections.The Commonwealth Electoral Act 1918(Commonwealth Act) applies to political partieswho operate in this State, and who are registeredwith the Australian Electoral Commission (AEC).The parties are required to disclose:

• amounts received by, or on behalf of, apolitical party;

• amounts paid by, or on behalf of, apolitical party; and

• amounts outstanding, as at the end ofthe financial year, of debts incurred by,or on behalf of, the party.(Commonwealth Electoral Act 1918s.314AB-AE)

Parties and candidates which are registered with theAEC are eligible for public funding. Legislation toamend the Commonwealth Act has recently beenintroduced into the Federal Parliament to strengthendisclosure provisions. Donations to, and electionspending by candidates specifically for Stateelections, however, do not have to be disclosed.

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The Western Australian Act (PFA) requires thedisclosure of political donations and contributions.The main provisions of the unproclaimed Act are asfollows:

• all donations over $1,500 must be disclosedalong with relevant details of the donor;

• gifts received by parties and candidates must bedisclosed within a certain time;

• candidates, political parties and interest groupsmust appoint agents to be responsible forfinancial disclosure. The appointment of anagent must be registered with the ElectoralCommissioner;

• under clause 175ZE(2) of the PFA, governmentbodies are required to report to the ElectoralCommissioner on the details of all expenditureincurred by, or on behalf of, the public agencyduring the reporting period in relation to:

‘(a) advertising agencies;(b) market research organisations;(c) polling organisations;(d) direct mail organisations; and(e) media advertising organisations.’

• the Electoral Commissioner must report at theend of a financial year to the Minister on alldonations and relevant matters. Under clause175ZG(2) of the PFA the Minister is required to‘cause a copy of each report ... to be laid beforeeach House of Parliament’;

• the public may obtain details of donation andexpenditure lodged with the ElectoralCommissioner on the payment of a fee to coverthe cost of copying;

• the Act seeks to stop discrimination againstindividuals making donations; and

• the Act provides for offences, penalties,investigations and enforcement of the provisionsfor disclosure.


3.1 Analysis of the Electoral Amendment(Political Finance) Act 1992

In recent years, Royal Commissions in Canada,New Zealand, Queensland, Tasmania and WesternAustralia have recognised the potential for corruptactivities where the disclosure of political donationsand contributions is not required. The WesternAustralian Royal Commission into CommercialActivities of Government and Other Matters madespecific recommendations in relation to thedisclosure of political donations. Some of theserecommendations were included in the yet to beproclaimed Electoral Amendment (PoliticalFinance) Act 1992. This section of the paper is aconsideration of the Western Australian legislationand draws upon practices in other countries andAustralian states.

The WA Royal Commission had three maincriticisms of the Act. They argued that it:

• provides for only limited recording of donationsand contributions;

• did not require the disclosure of electoralexpenditure; and

• left open avenues for the potentialmismanagement and abuse of politicalfinancing.

Important Issue:

• Does the Electoral Amendment(Political Finance) Act 1992 adequatelyaddress the problems of political financein Western Australia?

3.1.1 Definition of Political Donations

The PFA defines a gift as any donation made exceptby bequest or voluntary labour. It specificallyexcludes services by volunteer supporters, publicfunding payments, and annual membershipsubscriptions under $200 paid to a political party.

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Important Issue:

• How should donations be defined fordisclosure legislation?

3.1.2 Details of Donations and Gifts to beDisclosed

Under the Act the following details must bedisclosed:

1) the amount or value of a gift;2) the date on which the gift was made, as wellas:

‘c.175M (a) (i)the name of the association;and

(ii) the names and addresses ofthe members of theexecutive committee(however described) of theassociation; ...

(b) (ii) the names and addresses ofthe trustees of the fund or ofthe funds of the foundationand of the person for whosebenefit the fund or funds areheld; and

(iii) the title or otherdescription of the trust fundor the name of thefoundation ... and

(c) in any other case, the nameand address of the person whomade the gift.’

This provision in the PFA is very similar to theprovisions in the Commonwealth Electoral Act1918. Both require the disclosure of all the relevantdetails relating to the source of a donation.

Important Issue:

• What details of donations and giftsshould be disclosed?

3.1.3 True Source of Donations

The value of a disclosure scheme would be severelycompromised if the identity of the true donor is notknown. The PFA makes it unlawful for donations of$1,500 or more to be received unless the name andaddress of the person making the gift are known orgiven to the recipient. It does not, however, imposea requirement on the recipient to ascertain the truesource of the donation. For this provision to work,it depends on the intermediate contributors makingvoluntary disclosure of the true source of the funds.

The Commonwealth Act makes it unlawful toreceive a gift of more than $1,000 unless the truesource of the donation is known. Gifts receivedfrom undisclosed principals are unlawful and areforfeited to the Commonwealth. The issues ofanonymous and multiple donations will be dealtwith later in this section.

Important Issue:

• Should there be a requirement on therecipients of donations to disclose thetrue source of a donation?

3.1.4 Blind and Other Trusts andInternational Donations

The PFA requires the recording of the names andaddresses of the beneficiaries of the trust wheredonations are made from a trust fund. This is alsothe case of contributions made by other entities,such as blind trusts and foundations. In the case ofblind trusts, in which the names of trustees do notassist in identifying the person or persons whocontrol the fund, the identification of thebeneficiaries of the trust provides more relevantinformation.

Donations that come from outside Australia raiseanother set of questions. One issue is whetherindividuals or companies who are not part of theWestern Australian community should involvethemselves in, and perhaps influence, the politicalprocess in this State. In addition, an overseasaddress or intermediary may be used to conceal theorigin of a donation, so that identification of the

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true donor would be more difficult or evenimpossible.

Important Issues:

• Are names and addresses of executivecommittee members of blind trustssufficient information to be disclosed?

• Should donations be allowed from blindtrusts?

• Should donations be allowed fromoverseas individuals or organisations?

3.1.5 Disclosure of Monies forAdministrative and ElectoralPurposes

The PFA provides an exemption for donationsreceived by candidates for administrative purposes.In other countries and Australian states thedistinction between donations for administrativepurposes is being abandoned. Such a distinctioncreates an opportunity to conceal suspect donations.The distinction also makes it difficult for electoralauthorities to fully and correctly identify electoraldonations. As the Canadian Royal Commissionstated: ‘(i)t is essential for the public to know whatare the influences behind the parties that direct thedestiny of the country.’ (Canada, RoyalCommission on Party Financing 1991)

If the legislation does not require the disclosure ofdonations made to the administrative arm of acandidate’s campaign, some donors will be able toevade disclosure and the very intention of the PFA.Furthermore, if politicians are subject to disclosureobligations which materially differ from thoseimposed on political parties, there will remain a reallikelihood that donations and expenditure will bechannelled through politicians to avoid or minimisethe obligations imposed on parties by the PFA. Thedistinction between electoral and administrativedonations is not permitted under Commonwealthlegislation, since the passage of the PoliticalBroadcasts and Political Disclosures Act 1991.

Important Issue:

• Should funds received by candidates foradministration purposes be disclosed?

3.1.6 Interest Groups or Associations

The PFA imposes disclosure obligations on persons,other than political parties and candidates, whospend money for political purposes. The PFArequires interest groups and associations to furnisha return to the Electoral Commission disclosing thesource of any funds expended by such a body inregard to an election. This obligation only appliesto interested persons or organisations who incurexpenditure for a political purpose. As in the caseof candidates, this provision leaves interestedpersons or organisations with considerablediscretion to decide whether a gift should bedisclosed, and to draw a distinction between a giftused for administrative purposes and one used toincur expenditure for a political purpose.

Important Issue:

• If interest groups seek to influence anelection should they be required todisclose donations received by them?

3.1.7 Anonymous Donations

The PFA makes it is unlawful for a party,candidate, or an interested person, to accept a giftfrom unidentified donors where the value is abovethe minimum threshold of $1,500. The legislationthus allows anonymous donations for gifts whichare less than $1,500, leaving a loophole whichpartially defeats the purpose of the proposeddisclosure scheme. The Commonwealth ElectoralAct 1918 contains a provision making it unlawfulfor a party to anonymously receive a gift of $1,000or more, or for a candidate to receive a gift of $200or more. If an unlawful gift is received, it isforfeited to the Commonwealth.In Western Australia, all political donations over$1,500 will have to be disclosed if the PFA isproclaimed. The WA Royal Commission

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recommended that the limit should be $200. Arecent Royal Commission in Tasmaniarecommended allowing anonymous donations aslong as they are under a $500 limit. Such a limitmay help to protect the privacy of small scaledonors. The Tasmanian Royal Commission alsosuggested that details of small donations be kept bythe Electoral Commission but not publiclydisclosed.

Important Issues:

• Should anonymous donations beallowed?

• If yes, up to what level should beallowed?

• Should small donations be recordedrather than publicly disclosed?

3.1.8 Totalling Multiple Donations

Under the PFA, multiple gifts below the specifiedamount must be totalled and disclosed. This is toensure that the threshold limit of $1,500 cannot beavoided by making a number of small donations. Itis, however, lawful under the Act for a person toreceive anonymous gifts of less than $1,500. Thisloophole would enable the splitting of a largedonation into smaller donations (a practice commonin the United States known as smurfing) withoutany disclosure being required under the Act. For theAct to be effective it would have to containprovisions so that the threshold could not beavoided by anonymous multiple donations.

To avoid the United States practice of smurfing, theQueensland Electoral and Administrative ReviewCommission (EARC) recommended that alldonations made to parties and candidates beaggregated into a single sum, together with anindication of the number of donations of particularvalues they have received. EARC’s intention was toascertain whether smurfing was taking place so thatadditional measures could be considered ifnecessary.

Important Issue:

• Should all sums referred from a singlesource be registered to allow for analysisand if appropriate, reporting by theElectoral Commissioner?

3.1.9 Disclosure of Candidate’s OwnContribution

Under the PFA, a payment made by candidates ormembers of parliament to their own electioncampaign, need not be disclosed as there would beno gift of money involved in the payment.Nevertheless, some argue that the extent of fundingof a particular campaign is information to whichthe public is entitled. Whilst it is not envisaged thatany restriction should be made to the amount acandidate can contribute to their own campaign,this may be a significant amount that should bedisclosed.

The Commonwealth legislation does not require acandidate to disclose their own politicalexpenditure. A contribution by an endorsedcandidate to their own campaign is not required tobe disclosed as a donation to the candidate, but isrequired to be disclosed as a donation to the party.

Important Issues:

• Should candidates be required todisclose their own contributions to theircampaigns?

• Should independent candidates betreated any differently to party endorsedcandidates?

3.1.10 Interference with Political Libertyand Intimidation of Donors

The PFA makes provision for the protection of thepolitical liberty of donors. The PFA provides;‘[a]nyone who hinders or interferes with the freeexercise or performance, by any other person, ofany political right or duty that is relevant to an

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Proponents of a threshold argue that individualswho make very small donations are not attemptingto influence political decisions. They are simplyexpressing their support for the party or candidateof their choice. A threshold may assist in protectingthe privacy of small individual donors and reducethe administrative burden for both the ElectoralCommission and political parties. Some argue thatnumerous small donations are a sign of a healthydemocracy, and they ought to be encouraged toshow support for the political process by respectingtheir privacy. Only large donors are likely toexercise undue influence.

Important Issue:

• Should there be a threshold limit fordisclosure of donations? If so, whatshould it be?

3.3 Limitations on Who Can Make Donations

In the United States, corporations, persons whohold government contracts or who are applying forgovernment contracts, are prohibited from makingpolitical donations. Individuals are encouraged tomake donations by allowing donors to offset theirtaxation payments against donations. Thesearrangements have helped to compensate parties forsome of the losses that they incur due to restrictionson corporations giving donations. In WesternAustralia, this would require Commonwealthlegislation.

Important Issues:

• Should corporations, unions and otherassociations be banned from makingdonations?

• Should their membership/shareholdersbe asked if union/corporations wish tomake a donation?

• Should corporations holding, ortendering for, government contracts, beallowed to make donations?

election’ is guilty of an offence. The intention ofthis section is to offer protection to the politicalliberty of donors and to prevent intimidation.Although the Act states that no person shall ‘hinderor interfere with’ a donor, it does not providespecific protection from harassment, prejudice orintimidation.

Important Issue:

• Does the provision on protection ofliberty provide adequate protection toindividuals if they are harassed orintimidated either because of a donationthey have made to a political party, or inan attempt to pressure an individual tomake a donation?

3.2 Threshold Limits: Minimum Amount ofDonations and Multiple Donations

Table 1 compares the minimum disclosurethresholds under the different legislativerequirements in Australia.

Table 1Minimum Thresholds for the Disclosure

of Donations

JURISDICTION POLITICAL PARTIES CANDIDATE

Commonwealth $1,000 $200

New South Wales $2,500 $500

Western Australia $1,500 $1,500

Queensland* $1,000 $200

* The Queensland legislation applied for the first time atthe 1995 State election.

Opponents of a threshold argue that full disclosureof all donations and contributions is the strongestdisincentive against corruption. In addition, fulldisclosure will not allow individuals ororganisations to make numerous small donations inan effort to avoid identification.

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3.4 Uniform Legislation

Most political parties operate both at State andFederal level. State and federal political financelaws might be strengthened if they werecomplementary. Complementary legislation in thisarea would ‘ensure the disclosure of the source ofpayment made from this State to anotherjurisdiction and later repatriated to this State.’ (WARoyal Commission 1992: II 5.9.11) The sameprovision could apply to interstate and internationaldonations. Legislation has been introduced in SouthAustralia to prevent the donation of gifts made:

‘s.12 (3) (a) by a foreign person; or(b) outside Australia; or(c) as part of a series of

transactions and(i) a foreign person is a party

to any of the transactions;or

(ii) any of the transactions iseffected outside Australia.’(Electoral (PoliticalContributions and ElectoralExpenditure) Bill 1995)(South Australia)

Important Issue:

• Should uniform legislation be enacted inthis area to disclose interstate andinternational transfers?

3.5 Who Should be Allowed to Raise Funds?

Ministers or senior officials make executivegovernment decisions and therefore could be moresusceptible to outside influence in exchange forfunding. There are party codes of conduct forfundraising which outline the rights andresponsibilities of party members in receivingdonations. The codes of conduct in both theAustralian Labor Party and the Liberal Partysuggest that a member of parliament or candidateshould not accept money or services on the party’s,or their own, behalf. There may be, however, a casefor enacting legislation in this area making it illegal

for certain party officials to raise funds for apolitical party.

Important Issues:

• Should ministers and premiers bedirectly involved in fundraising orshould they be prohibited from raising orreceiving funds?

• Should senior party officials be allowedto be directly involved in fundraising?

• Should codes of conduct for fund raisingby political parties and candidates be putinto legislation?

• If ministers and premiers are prohibitedfrom raising and receiving funds, whatshould be the penalty if any illegality isuncovered?

Part II DISCLOSURE OF ELECTORALEXPENDITURE

1 INTRODUCTION

Electoral expenditure is money spent by individualsor groups in promoting or opposing a candidate orparty standing for elections. This money could bespent on items such as advertising, polling andprinting material. One of the important elements ofour democratic system is that it is open to allcitizens to stand for election. Any burden imposedby the requirement of disclosure should beminimised to ensure that the willingness and abilityof potential candidates to stand for election is notinhibited.

In recent years Royal Commissions in Canada,New Zealand, Queensland, Tasmania and WesternAustralia have recognised the potential forexcessive electoral expenditure to have an unfairinfluence on voters. A large scale advertisingcampaign may be able to sway the opinions ofvoters to the disadvantage of other groups whichmay not have the same financial resources.

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The WA Royal Commission suggested that:‘[a]bove all, the electoral process itself should beopen.’ (WA Royal Commission, 1992: II 5.9.4) Thedisclosure of electoral expenditure and othermeasures should be used to ensure that the electoralprocess is not distorted and that the electorate isinformed about how candidates and parties spendmoney soliciting their vote.

Supporters of disclosure of electoral expenditureargue:

• the public has a right to know how much is beingspent by parties, candidates and interest groups;

• disclosure may inhibit excessive expenditure;

• disclosure may stop parties with large financialresources from dominating election campaigns;

• disclosure makes parties and candidates moreaccountable to the voters; and

• disclosure provides an accountabilitymechanism where public funding of elections isprovided.

Those who oppose disclosure argue:

• candidates, parties and interest groups have aright to spend their money as they think fit; and

• disclosure procedures may create such a burdenthat it would discourage individuals fromrunning for office.

Should a scheme for the disclosure of electoralexpenditure be introduced for State elections, thereare a number of issues that need to be addressed.The following discussion will examine some ofthese issues and draw on practices from othercountries and Australian States.

There is a long list of items of electoral expenditurewhich could be disclosed. The main areas includedin disclosure schemes are:

• advertising costs both in the mass mediaand by direct mailing;

• party donations to candidates;

• costs of consultants, research, polling andfundraising; and

• campaign costs, such as expenditure ontravel, rallies and communications.


Currently, there is no State legislation requiring thedisclosure of electoral expenditure. At present, theCommonwealth legislation requires political partiesand their State branches registered with theAustralian Electoral Commission (AEC) to disclosedetails of amounts paid by, or on behalf of, apolitical party or candidate, over $1,500 spent foreach financial year. Spending on State elections byregistered parties and their State branches,however, is not separately disclosed. In addition,spending on State elections by candidates andparties not registered with the AEC does not haveto be disclosed.


3.1 A Definition of Electoral Expenditure

There are two possible approaches in establishing adefinition of electoral expenditure. An inclusivesystem lists all the items of expenditure whichwould have to be disclosed. An exclusive systemlists only those items that are excluded from thedefinition, and require that all other expenditure bereported.

Important Issues:

• Should all items of electoral expenditurebe disclosed?

• What level of information should bedisclosed? Should it be segments ofexpenditure, a total or both?

3.2 Disclosure of Administrative Expenditure

Not all expenditure by political parties is directlyrelated to elections. Political parties spend moneyon administrative items such as; stationery,

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• Should the list of items be the same asthose for parties and candidates?

• How should interest groups be keptaware of their obligations to keeprecords and report their expenditures?

3.4 Disclosure by Broadcasters andPublishers

The disclosure of monies received by those providingservices related to elections may act as a cross-checkon the returns of parties, candidates and interestgroups. The Commonwealth currently has a schemewhich requires broadcasters and publishers to furnishreturns to the Australian Electoral Commission(AEC). A State scheme, if implemented, could use thesame format for disclosure as the Commonwealthscheme. This may help to reduce the administrativeburden this requirement may place on broadcastersand publishers. The AEC has, however, indicated thatthis information is of limited use as a cross-check andmay create an administrative burden on theorganisations involved. It may be sufficient, as analternative, to have the accounts of candidates, partiesand interest groups audited.

Important Issue:

• Should broadcasters and publishers berequired to disclose monies receivedfor payment for political advertising?

Part III OTHER MATTERS OFPOLITICAL FINANCE


1.1 Processes Applying to Disclosure

1.1.1 Agents

Under the Electoral Amendment (Political Finance)Act 1992 (PFA) political parties and candidates wouldbe required to appoint agents who are responsible forlodging the relevant returns in the correct form and atthe correct time. The as yet unproclaimed PFA contains

telephones, faxes and the wages of administrativestaff. There are examples of legislation which donot require the disclosure of these types ofexpenditure. One commentator argues:

party organisations exist in Australia almost entirely toorganise and execute election campaigns. Virtually everythingthey do is directed at winning the next national, state or localelection. It is impossible to separate the administration andelectoral activity of major parties. (Chaples, Ernie 1988:30-31)

The Commonwealth Electoral Act 1918 requiresregistered political parties to make annual and post-election disclosures of financial information.

Important Issue:

• Should expenditure on the administrativeactivities of parties, candidates andinterest groups be disclosed?

3.3 Disclosure of Electoral Expenditure byInterest Groups

Interest and lobby groups are becomingincreasingly important influences on the electoralprocess. In the 1990 Federal election, 15.8 per centof the total reported electoral expenditure was madeby such groups. The New South Wales ElectoralFunding Act 1981 (New South Wales Act) does notrequire interest groups to disclose their expenditure,while the Commonwealth Act does requiredisclosure.

Important Issues:

• Does the public have a right to knowabout electoral expenditure byinterest and lobby groups who seek toinfluence elections?

• What should be the disclosure period forinterest groups? Should it be the same asthe disclosure period applicable topolitical parties or restricted to only thecampaign period?

• What items of expenditure by interestgroups should be disclosed?

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a number of provisions dealing with the appointment,registration, and responsibilities of agents in relationto political donations. Unlike the Commonwealth andNew South Wales legislation, however, there is norequirement in the PFA for the agent to lodge a returnin respect of expenditure.

Important Issue:

• Should a scheme for the disclosure ofelection expenditure operatethrough a system of agents?

1.1.2 Party/Candidate Expenditure

Parties often transfer funds to candidates to assistthem with their campaigns. Candidates may also

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transfer funds to the central party. If the schemeexists for the disclosure of donations these transfersmay need to be disclosed.

Important Issue:

• Should party/candidate transfers bedisclosed as electoral expenditureas well as donations?

1.1.3 Disclosure Periods

The disclosure period for donations is outlined inWestern Australia’s Electoral Amendment(Political Finance) Act 1992, which provides:

(see box below:)

(a) political parties ‘c.175N (1) The agent of a political party shall, by 30 September in each year,lodge a return with the Electoral Commissioner in an approved formsetting out details of all gifts and other income received by the partyduring the financial year which ended on the last preceding 30 June.’

(b) candidates (i) Candidate Over Two or More Election Periods

Disclosure period for current election commences 30 days afterpolling day for the previous election, ending 30 days afterpolling day for the current election.

(ii) Candidate in Current Election Only

One year before the day of the nomination of the person as acandidate, ending 30 days after polling day in the election.

(iii) In both cases details have to be disclosed within 15 weeks afterpolling day.

(c) interest groups‘c.175Q (4) ... the disclosure period for an election ... is the period that;

(a) commenced at the end of 30 days after polling day inthe last preceding general election; and

(b) ended 30 days after polling day in the relevant election.’

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Important Issues:

• Are these disclosure periods sufficient?

• Should disclosure periods be the samefor donations and expenditure?

1.1.4 Public Availability of Returns/Declarations

An effective disclosure scheme should:

[take] into account both the potential level of interest in thedisclosed information and the way it is presented. To achieveopenness, adequate information must not only be disclosedbut also be arranged meaningfully and in a format that isaccessible to potential users. (Canada, Royal Commission onParty Financing, 1991)

In the PFA a person is entitled to see a copy of areturn upon the payment of a fee to cover the costof copying. In Canada, after elections, details ofcandidates’ personal expenses during the electionperiod are published in local newspapers by thereturning officer for the district. In addition, thechief electoral officer distributes, on an annualbasis, a compilation of the registered parties’annual returns.

Important Issues:

• Should cost recovery fees be charged forthe disclosure of details of politicalfinance?

• Should electoral expenses be publicisedin newspapers as is the practice inCanada?

• Should the annual returns of parties bereadily available?

1.1.5 Presentation of Information

The way information is presented will have abearing on its usefulness to the public. Very detaileddescriptions of spending, however, may be a burdenon political parties and candidates and of little use

to the public. A balance may need to be struckbetween the public’s right to know and creatingunnecessary burdens on candidates.

Important Issue:

• What level of detail is required for aneffective disclosure scheme?

1.1.6 Use of Lists for Other Purposes

In the United States, lists of donors are made publicby the Federal Electoral Commission. It is anoffence, however, to use the names on the list forany other purposes. To stop the use of the lists forother purposes, the Federal Electoral Commissionplaces dummy entries on the list. Any person foundusing these entries are fined. This procedure, ifintroduced in Western Australia or theCommonwealth, could limit the potential for donorsto be intimidated or discriminated against becauseof their support for a political organisation. Thismethod would assist in the detection of breaches ofthe Act.

Important Issue:

• Should Western Australia adopt similarsafety provisions to those usedin the United States in order to protectthe political liberty and privacyof donors?

1.2 Administration, Enforcement andPenalties

There are three components in the administration ofan effective disclosure scheme:

• it must ensure that all candidates, parties andinterest groups make their financial detailsavailable at the appropriate time;

• it should be enforced by an agency independentof political control and with adequate powers toensure compliance; and

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• penalties should be appropriate for anybreaches of the regulations.

1.2.1 Administration and Enforcement

The PFA would require the Electoral Commissionerto administer the scheme for the disclosure ofpolitical donations. Returns concerning gifts andincome must be lodged with the ElectoralCommissioner, who has limited powers to obtainfurther information in relation to returns.Regulations may be made requiring the making,keeping and auditing of records of gifts and otherincome and the production, examination andcopying of those records. The ElectoralCommissioner would also be required under theFPA to report to the relevant Minister on theoperation of the scheme at the end of each financialyear. The Minister then tables the report inParliament.

Although the Electoral Commissioner would havethe primary responsibility for enforcing the PFA,there are no special powers to call for, or verify,information set out in returns or to examine anyperson in connection with the proposed legislation.The WA Royal Commission, in itsrecommendations, expressed doubts that the powerunder the PFA to make regulations is capable ofsupporting an effective enforcement and scrutinyprocedure. It also recommended that the ElectoralCommissioner be properly empowered andresourced to enforce the legislation. (WA RoyalCommission, 1992: II Appendix 3-9)

Both Commonwealth and New South Walesschemes have provisions for enforcing compliancewith disclosure provisions. In the case of theCommonwealth, a limitation of its powers toconduct audits of returns has restricted its ability toenforce its disclosure legislation. The New SouthWales legislation permits the Electoral FundingAuthority to enter and inspect records relating todisclosure by political parties or candidates. (WARoyal Commission, 1992: II Appendix 3-9)

A number of submissions to the QueenslandElectoral and Administrative Review Commission(EARC) supported the need for stringentenforcement provisions to allow for the verificationof details submitted in returns. It was argued that

the powers granted under the legislation, shouldallow the administering authority to conduct spotaudits, relevant to an election, of the financialrecords of a political party, candidate or interestedperson. EARC also considered the need for theQueensland Electoral Commission to havesufficient powers to verify or ascertain the truesource of donations. Such powers are necessary sothat the public can be confident that no organisationor individual can disguise their identity and exertundue influence on a party or candidate.

Important Issues:

• What should be the extent of theinvestigatory powers of the ElectoralCommissioner?

• Should the Electoral Commissioner havepowers to verify information andexamine persons in connection with theinformation disclosed under thelegislation?

1.2.2 Prosecutions

Under the PFA prosecution of offences would bereferred to the Police. The CommonwealthElectoral Act 1918 requires the AustralianElectoral Commission to make information andrecommendations to the Federal Director of PublicProsecutions.

In California the body responsible for investigatingelectoral offences is also responsible forprosecutions. The Fair Political PracticesCommission holds hearings and investigatespossible breaches of Californian legislation. TheCommission can compel witnesses to appear,administer oaths and levy fines. The Commission’sdecisions are subject to judicial appeal.

The Canadian experience demonstrates thatcriminal penalties are difficult to prove and ofteninappropriate as most breaches are of a minoradministrative nature and are not wilful avoidanceof disclosure. The Canadian Royal Commissionsuggested that less serious violations be ‘prosecutedbefore the Canada Elections Commission’.

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(Canada, Royal Commission on Party Financing,1991) Such a course might, however, have aharmful effect on what should be a co-operativerelationship between the Electoral Commission andparties and candidates which extends far beyondpolitical finance regulation.

Important Issues:

• What should constitute offences underany legislation dealing with theregistration of political donations?

• Who should prosecute breaches of thePFA?

• What powers should the responsibleauthority possess if registration/disclosure provisions are to be enforced?

• Should it be able to conduct audits toverify returns/declarations, or shouldparties and candidates be required tosubmit audited returns?

1.2.3 Penalties

Table 2 shows the range of penalties applicable todisclosure schemes in the Commonwealth, NewSouth Wales and Western Australia.

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Table 2Penalties for Breaches Under Relevant Acts

COMMONWEALTH OFFENCES PENALTY(Commonwealth Electoral Act 1918)

Failure to Lodge a Return $5,000 Political Party$1,000 Any Other Person

Submission of an Incomplete Return $1,000Submission of a False or Misleading Return Not Exceeding $10,000by an Agent of a Registered Political PartySubmission of a False or Misleading Return Up to $5,000by a Person who is not an Agent or a RegisteredPolitical PartyProviding a Person Required to Submit a $1,000Disclosure Return with False or MisleadingInformationFailure to Lodge a Return Within Prescribed Not Exceeding $100 for Each DayPeriod Return is Outstanding

NEW SOUTH WALES OFFENCES PENALTY(Electoral Funding Act 1981)

Failure to Lodge Return by a Registered Not Exceeding $10,000 - AgentParty Agent Not Exceeding $20,000 - PartyFailure to Lodge a Return by a Registered Not Exceeding $10,000Agent of a Group or CandidateFalse or Misleading Statements in a Return Not Exceeding $10,000

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Important Issues:

• Are the penalties in the FPA adequate?

• If a scheme for disclosure of electoralexpenditure were introduced, whatpenalties should apply for breaches?

• In the United Kingdom, if a Member ofParliament is found guilty of corrupt orillegal behaviour in relation to anelection, the seat can be declared vacantand a by-election called. Should such aprovision operate for the more seriousoffences in Western Australia?

1.3 Limits on Electoral Expenditure

The increasing amounts spent on elections tends toexclude those groups in the community withoutlarge financial backing from running effectivecampaigns. Those with enough money mayinfluence voters through spending large amounts onpolitical advertising. Limits may help to stoppolitical corruption because parties and candidateswho require large amounts of money to mountcampaigns, in which no limits apply, may be forcedto accept funds with strings-attached. Limits onexpenditure may also mean that parties willcompete on a more even footing. Many wouldregard it as unfair if a political party were to win

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WESTERN AUSTRALIAN OFFENCES PENALTY(Electoral Amendment (Political Finance) Act 1992 )

Failure to Lodge a Return Not Exceeding $7,500 - Political PartyNot Exceeding $1,500 - Other Cases

Submission of a False or Misleading Return Not Exceeding $15,000by an Agent of a Political PartySubmission of a False or Misleading Return by a Not Exceeding $7,500Person Who Is Not an Agent of a Political PartyFurnishing a Person Required to Submit a $1,500Disclosure Return with False or MisleadingInformationFailure to Submit a Return Within The Not Exceeding $150 For Each DayPrescribed Period Return is Outstanding

government because of the volume of its messagerather than the content of its message. (Ewing,1992: 256)

The High Court of Australia made reference tospending limits for election campaigns in its rulingon the Australian Capital Television Case Pty Ltdv Commonwealth of Australia ((1992) 108 ALR577). It was suggested that limits on expendituremay not impinge on the implied right to the freedomof communication. It was also suggested that ifspending limits could be shown to be in the publicinterest, then legislation to restrict election spendingwould be consistent with the CommonwealthConstitution.

Previous attempts to limit expenditure in Australia,for example under the Commonwealth ElectoralAct, were eroded by inflation and were widelyignored by candidates who either failed to lodge therequired return or else put in one that did notcorrectly report their expenditure. WesternAustralia had expenditure limits on electoralexpenditure but these were repealed in 1979.

The arguments against setting limits are:

• limits can be easily avoided by the use ofinterest groups to fund electoral expenseswhich may greatly increase the number ofseparate bodies to be regulated - as hasproven to be the case in the United States;

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• only when there is public funding ofelections should there be limits on theamounts spent;

• incumbent members have an advantagewhen expenditure limits are set becausetheir office facilities are often used tosupplement electoral work;

• limits may affect the method ofcampaigning. Spending limits in some pastTasmanian elections meant that candidateswere often forced to hold public meetings asa less expensive alternative to television, orother forms of advertising;

• political parties may not be able to promotethemselves to the best of their ability; and

• there are a number of procedural difficultiesin setting up a scheme to limit electoralexpenditure. For example, what is arealistic limit? What should be thedisclosure period? How can all theloopholes be closed including the problemof limiting the expenditure of interestgroups?

Important Issues:

• Should limits be set on electoralexpenditure?

• To what areas of expenditure should thelimits apply?

• Is it necessary to impose limits on bothcandidates and parties?

• Can limits be imposed on interestgroups?

• Should consideration be given to linkingthese limits to the consumer price index?

• What should be the penalties forbreaching these limits?

• Should the seat of a successful candidatebe forfeited if the limits are exceeded?

1.4 Public Funding of Candidates and Parties

The public funding of elections could be a meansby which political parties and candidates are madeless dependent on private political donations. Publicfunding of Commonwealth election campaignsalready exist. Candidates in Commonwealthelections may claim the lesser of either expenditureincurred, or an entitlement, calculated by thenumber of formal first preference votes received inan election. The New South Wales ElectoralFunding Act 1981 and the Queensland ElectoralAct 1992 also provided public funds for electionpurposes to political parties, groups and candidates.Countries such as Sweden, Canada, France, Italy,Norway, the United States and Germany all providea level of public funding for candidates in elections.

The disclosure of political donations, ifimplemented in Western Australia, may reduce theamount of funds received by political parties andcandidates from private donors. Disclosure schemesin other jurisdictions have often coincided with adrop in the level of private donations. This drop,however, has not endangered the financial viabilityof the parties where legislation is correspondinglyintroduced to publicly fund parties.

Public funding may make political parties lessconcerned with obtaining grass roots support astheir reliance on public funding grows. This coulderode the relationship that exists between partycandidates and the electorate. Studies have shownthat in some countries where political parties arepublicly funded, party organisations become morecentralised which supports this concern.

Opponents of public financing argue that it mayinhibit the growth of alternative parties andmaintain the strength of the existing parties. Inaddition, political parties are essentially privateorganisations and there is the argument that thepublic funds should not be used to promote them.There are, however, other private organisationswhich receive public funding and it could also beargued that the public funding of political partiesmay improve the integrity of the electoral system.For example, public funding may enable smallerparties, which have difficulty attracting privatefunding but have a significant level of communitysupport, to become more competitive in elections.

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This may reduce the relative power of the majorparties.

Important Issue:

• Should a scheme for the public fundingof political parties and candidates beintroduced in Western Australia?

1.4.1 Extent of Public Funding

In some countries, such as Sweden, public fundingis provided to political parties for administrative aswell as electoral purposes. The argument in favourof this type of funding is that political parties incurconsiderable costs outside election periods andpublic funding may limit the need for parties to relyon private donations.

Decisions need to be made about what types ofexpenditure should be reimbursed. All expenditurecould be reimbursed or funding could be limited tospecific items of expenditure, either way there needsto be proper auditing procedures in place to ensurethat funds are properly accounted for. Full publicdisclosure of donations and expenditure may fulfilthis function. There would also be a need for partiesand candidates to register with the agencyresponsible for funding.

Important Issue:

• What should be the extent of publicfunding?

1.4.2 Eligibility for Public Funding

In Australia, the Commonwealth’s public fundingscheme provides money on the basis of votesreceived at the previous general election. At the lastfederal election parties receiving 4 per cent or moreof the total first preference vote, in the relevantelectorate, received funding at the rate of $1 perHouse of Representative vote and 50 cents perSenate vote. The Commonwealth Parliament hasrecently passed legislation which will providefunding at the same rate for elections for both

houses. Under this scheme, parties and candidatesmay not receive more money than they have spenton an election campaign. In the 1990 Federalelection, $12,878,920 was paid to candidates andpolitical parties.

Public funding may also provide a means formaking the processes of political parties open topublic scrutiny. If political parties are receivingtaxpayers funds then perhaps they should bepublicly accountable. The disclosure of electoralexpenditure is usually required where publicfunding is provided. Political parties could also, asa prerequisite for receiving public funding, berequired to open up preselection ballots and otherparts of the party administration to wider publicscrutiny. (Farrow, 1995: 4)

Important Issues:

• Who should be eligible for publicfunding?

• Who should receive public funding;parties or candidates?

• If public funding is introduced, shouldthere also be public regulation ofpolitical parties?

• If there should be public regulation ofpolitical parties, what other areas oftheir activities should be subject toregulation?

1.5 Local Government

Local Government elections are subject to theprovisions of the Local Government Act 1960. TheAct contains provisions relating to the disclosure ofpecuniary interests by members, but contains norequirement for councillors to disclose electionspending or donations. There is also no provisionfor election spending limits or public funding oflocal government elections, although candidates areentitled to claim tax deductibility up to $1,000 forexpenditure on local government elections. Many ofthe issues discussed in this paper may equally applyto local government elections.

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Important Issues:

• Should a scheme for the disclosure ofelection spending and donations apply tolocal government elections?

• Should spending limits be imposed oncandidates in local governmentelections?

• Should candidates in local governmentelections be funded from municipalrevenue?

• Who should administer the aboveschemes if they were introduced?

• Should it be the Electoral Commissioneror some other independent public officialsuch as the Auditor General, or someofficial involved in local government?

SUMMARY

Elections are of vital importance to our system ofrepresentative government. Public confidence in theintegrity of the electoral system needs to bemaintained. The provision of money and otherresources, and the control of their use, can have animportant bearing on the legitimacy of the politicalprocess.

The WA Royal Commission made a strong case forthe disclosure of political donations and electoralexpenditure. It was argued that the disclosure ofpolitical donations and contributions is central toelectoral legislation which seeks to minimisecorrupt, illegal or improper conduct. This paper hascovered some of the main issues for and againstfurther regulation of political finance. Publiccomment and discussion of these matters isessential. The Commission on Governmentwelcomes and encourages public debate andsubmissions on these issues.

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‘Australian Elections and Polls’ (1984)Commonwealth Law Bulletin 736-743

Australian Electoral Commission (AEC) (1992)Commonwealth Electoral Procedures Canberra:Commonwealth Government Printer

Australian Electoral Commission (AEC) (1986)Election Funding and Financial Disclosure: FinalReport on the Operation of Part XX of theCommonwealth Electoral Act 1918 in Relation tothe Elections held on 1 December 1984 Canberra:Australian Government Publishing Service

Australian Electoral Commission (AEC) (1988)Election Funding and Financial Disclosure Reportin Relation to the Elections held on 11 July 1987Canberra: Australian Government PublishingService

Australian Electoral Commission (AEC) (1991)Election Funding and Financial Disclosure Reportfor the Elections for the House of Representativesand the Senate held on 24 March 1990 Canberra:Australian Government Publishing Service

Barendt, Eric (1993) ‘Election Broadcasts inAustralia’ The Law Quarterly Review 109: 168-171

Canada, Royal Commission on Electoral Reformand Party Financing (Canada, Royal Commissionon Party Financing) (1991) Report Ottawa

Carney, Gerard (1991) ‘The Duty ofParliamentarians to Make Ad Hoc Disclosure ofPersonal Interests’ Public Law Review 2: 24-43

Chaples, E. (1981) ‘Public Campaign Finance:New South Wales Bites the Bullet’ AustralianQuarterly 53(1): 4-14

Chaples, Ernie (1988) ‘Campaign Donations: TheReal Issues’ Current Affairs Bulletin 64(10):30-31

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Ewing, K.D. (1992) ‘The Legal Regulation ofElectoral Campaign Financing in Australia: APreliminary Study’ Western Australia Law Review22: 239-256

Farrer, Richard and David Dorrett (1984) ‘LaborGets More and the Libs Get Less: Fund Raising’The Bulletin 32

Farrow, Ian (1995) ‘Politicians Inc.’ InstitutePublic Affairs Review 47: 4

Finn, P.D. (1977) ‘Public Officers: Some PersonalLiabilities’ The Australian Law Journal 51: 313

Gallop, Geoff (1991) Disclosure of PoliticalDonations Background and Summary of aProposal Perth: Minister for Parliamentary andElectoral Reform

Hanks, Peter (1994) Australian ConstitutionalLaw Materials and Commentary (Fifth Edition)Sydney: Butterworths

Independent Commission Against Corruption(ICAC) (1990) Report on the Investigation intoNorth Coast Land Development.Sydney: ICAC

Independent Commission Against Corruption(ICAC) (1992) Report on Investigation into LocalGovernment, Public Duties and ConflictingInterests Sydney: ICAC

Meadows, Denny (1988) ‘Open Election Fundingor Hide and Seek?’ Legal Service Bulletin 13(2):65-70

Mendilow, Jonathan (1992) ‘Public Party Fundingand Party Transformation in Multiparty Systems’Comparative Political Studies 25(1): 90-117

New South Wales Parliament (1980) Report fromthe Joint Committee on the Legislative Counciland Legislative Assembly Upon Public Funding ofElection Campaigns Together with the Minutes ofProceedings and Evidence

‘New Zealand: Disclosure of Political Funding’(1992) Commonwealth Law Bulletin 1223

Chaples, E.A. (1989) ‘Public Funding of Electionsin Australia’ in H.E. Alexander (editor)Comparative Political Finance in the 1980sCambridge: Cambridge University Press

Chaples, E.A. (1990) ‘Financing Elections inAustralia: Reflections on a Decade of PublicFunding and (Non) Disclosure’ Prepared for theAustralian Study of Parliament Group AnnualMeeting Hobart Canberra: Australian Study ofParliament Group

Commonwealth Parliament Joint StandingCommittee on Electoral Affairs (1989) Who Paysthe Piper Calls the Tune: Minimising the Risks ofFunding Political Campaigns: Inquiry into theConduct of the 1987 Federal Election and the1988 Referendums, Report Number 4 of the JointStanding Committee on Electoral MattersCanberra: Australian Government PublishingService

Commonwealth Parliament Senate SelectCommittee (1991) Report on Political Broadcastsand Political Disclosures Canberra: AustralianGovernment Publishing Service

Cross, William (1994) ‘Regulation IndependentExpenditures in Federal Elections’ CanadianPublic Policy 20(3): 253-263

Electoral and Administrative Review Commission(EARC) (1991) Public Registration of PoliticalDonations, Public Funding of Election Campaignsand Related Issues Brisbane: EARC

Ewing, K.D. (1987) The Funding of PoliticalParties in Britain Cambridge: CambridgeUniversity Press

Ewing, K.D. (1988) ‘The Legal Regulation ofElectoral Campaign Financing in American FederalElections’ Cambridge Law Journal 47(3): 370-402

Ewing, K.D. (1992) Money, Politics and Law, AStudy of Electoral Campaign Finance Reform inCanada Oxford: Clarendon Press

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New Zealand, Royal Commission on the ElectoralSystem (1986) Report Wellington: New ZealandGovernment Printer

Nicholson, Marlene (1974) ‘Campaign Financingand Equal Protection’ Stanford Law Review 26:815-820

Parliament of the Commonwealth of Australia(1991) The Political Broadcasts and PoliticalDisclosures Bill 1991 Report by the Senate SelectCommittee on Political Broadcasts and PoliticalDisclosures Canberra: Senate Printing OfficeParliament House

Royal Institute of Public Administration ofAustralia (1992) Submission to the RoyalCommission Inquiry into Commercial Activities ofGovernment and Other Matters

Sexton, Michael (1978) ‘The Role of JudicialReview in Federal Electoral Law’ Australian LawJournal 52: 28-38

Shirley, Ken (1988) ‘Electoral Reform - TheParliamentarians’ View’ Legislative Studies 3(1):17-19

Starr, G. (1979) ‘Subsidising Political Parties andCandidates’ Current Affairs Bulletin 56(1): 4-13

Tasmania, Royal Commission into an Attempt toBribe a Member of the House of Assembly andOther Matters (Tasmania, An Attempt to Bribe aMember) (1991) Report


Cases

Australian Capital Television Pty Ltd vCommonwealth of Australia (1992) 108 ALR 577;177 CLR 106

Buckley v Valeo 424 US 1 (1976) 48-49

Legislation

Commonwealth Electoral Act 1918(Commonwealth)

Commonwealth Political Broadcasts and PoliticalDisclosures Act 1991 (Commonwealth)

Commonwealth (Political and ElectoralExpenditure) Bill 1995 (Commonwealth)

Electoral Act 1907

Electoral Act 1992 (Queensland)

Electoral Amendment (Political Finance) Act 1992(PFA)

Electoral Funding Act 1981 (NSW)

Electoral (Political Contributions and ElectoralExpenditure) Bill 1995 (South Australia)


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Matter 18 relating to the role of parliamentarycommittees on legislation, including theaccommodation of the right of the public to makerepresentations on legislative measures referred toany such committee. The reader is referred to theBackground Paper published by the Commissionfor a general overview of the Western Australiansystem of government. Further material ofrelevance is also contained in the Commission’sDiscussion Papers No. 1 and No. 2.

The paper identifies some of the issues which maybe relevant to the commission’s task and providesinformation and background on those issues. Theissues identified, and the information andbackground provided, are not intended to be anexhaustive list and submissions may address anyother relevant issues.


SUBMISSIONS



FORMAT






PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if and tothe extent the Commission considers those mattersrelevant to the prevention of corrupt, illegal orimproper conduct of public officials, includinggovernment ministers and members of parliament.The Commission may also inquire into othermatters it considers relevant to the prevention ofcorrupt, illegal or improper conduct in the publicsector.




This paper deals with Specified Matter 17 relatingto the means best suited to be adopted byparliament to bring the entire public sector under itsscrutiny and review, having regard particularly: (a)to the use of parliamentary committees for thepurpose; (b) to question time; and (c) to the mannerin which the departments and agencies ofgovernment should be required to report toparliament. Within the context of an examination ofthe committee system of the Western AustralianParliament the paper also deals with Specified

PREFACE

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CONTENT


1. SUMMARY – this should be a very briefoutline of the specific matter you are addressing,your concerns and what you are proposing. Clearlystate which Specified Matter you are addressing.

2. SUBMISSION/ARGUMENT – in this sectionyou can expand on your concerns about the issuesthat you are addressing, outlining how you willback this up with factual material and argumentwhich support your views.

3. SUPPORTING MATERIAL – here youpresent any material, item by item, referring to howeach item supports your argument. This may takethe form of examples of actual events, copies ofdocuments, or any other evidence relevant to yoursubmission.

4. RECOMMENDATIONS – you need toclearly present your recommendations addressingthe concerns identified by your submission. Theyshould be listed in order of importance andnumbered:



ISBN 0 7309 6908 8Copyright Commission on GovernmentJuly 1995

CONTENTS

Part I PUBLIC SECTOR REVIEW BYPARLIAMENT

1 INTRODUCTION

1.1 The Public Sector1.2 Public Sector Accountability1.3 Ministerial Responsibility


2.1 The WA Royal Commission2.2 Parliamentary Questions2.3 Parliamentary Committees2.4 Annual Reports2.5 Statutory Officials


3.1 Parliamentary Questions3.2 Parliamentary Committees3.3 Annual Reports3.4 Prorogation3.5 Parliamentary Library

4 SUMMARY

Part II PARLIAMENTARYCOMMITTEES ONLEGISLATION

1 INTRODUCTION

1.1 Function and Roles of a LegislativeCommittee

1.2 Powers of Committees1.3 Other Jurisdictions


2.1 Legislative Process2.2 Standing Committees2.3 Delegated Legislation2.4 Public Input in the Legislative

Process2.5 Role of the Legislative Council

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century, of a politically neutral public service togive advice to ministers, handle day-to-dayadministration and to provide government services.As the business of government and publicadministration has become more complex, the clearboundaries between the public and private sectorshave become blurred. This is further complicatedby recent trends such as providing public servicesthrough contracts with the private sector, new stylesof management in the public sector, the limitedtenure of senior public servants and corporatisedgovernment business enterprises.

In Western Australia, departments are establishedby the Governor on the recommendation of theMinister for Public Sector Management.Departments can be established, amalgamated,divided, abolished or redesignated. A statutoryauthority is an agency of government established byan act of parliament. Statutory authorities have thestatus of a corporate body with an independentlegal existence. Unless there is a sunset clause in itsact, a statutory authority can only be abolished orotherwise restructured by repealing or amending therelevant legislation. Statutory authorities includethe Lotteries Commission, the Disability ServicesCommission, the Heritage Council of WesternAustralia, and the Library and Information Serviceof Western Australia. State government businessenterprises include Goldcorp, Bankwest, the WaterAuthority of Western Australia, Western Power andAlintaGas.

1.2 Public Sector Accountability

There are few constitutional constraints on power inWestminster-derived governments. This emphasisesthe need for effective public accountabilitymeasures for the public sector. The traditionalWestminster model is based on a chain ofaccountability: public servants are responsible to aminister; the minister is responsible to parliament;and the parliament is responsible to the people. Thismodel hinges on the doctrine of ministerialresponsibility, which makes ministers responsiblefor everything done or not done in their portfolios.

1.3 Ministerial Responsibility

Ministerial responsibility is an essential linchpin inthe accountability process. Ministers are


3.1 Parliamentary Review3.2.Parliamentary Committees on

Legislation3.3 Public Representations and

Participation3.4 Delegated Legislation

4 SUMMARY

REFERENCES

Part I PUBLIC SECTOR REVIEW BYPARLIAMENT

1 INTRODUCTION

Part I of this discussion paper deals with SpecifiedMatter 17 which reads as follows:

17. The means best suited to be adopted by Parliamentto bring the entire public sector under its scrutinyand review, having regard particularly -(a) to the use of parliamentary committees for

the purpose;(b) to question time; and(c) to the manner in which the departments and

agencies of government should be requiredto report to Parliament.

1.1 The Public Sector

The term ‘public sector’ refers to the institutionalframework of government administration, statutoryauthorities and government business enterprises. Acharacteristic of the public sector is that itsagencies are funded in whole or in part byallocations made by the parliament or they rely onthe state’s credit to borrow money. Most of theagencies of the public sector form part of aminister’s portfolio responsibility, and the so-calledstatutory officials, such as the Auditor General,Parliamentary Commissioner for AdministrativeInvestigations (Ombudsman) and Commissioner forPublic Sector Standards while they do not report toa minister, are also part of the public sector.

Westminster-derived systems of government have atradition, dating back to the early nineteenth

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responsible to parliament for administering thedepartments, agencies and other bodies whichcomprise their portfolio. They can be pressed by theopposition in parliament to account for theiractivities and those of their departments. If they failthis accountability test, because of incompetence orpoor departmental performance, ministers areexpected to resign. In practice, it is rare forministers to resign because of administrativefailures in their portfolios.


2.1 The WA Royal Commission

The Western Australian Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission 1992) exposed theinadequacy of the existing accountability measuresin Western Australia, and stated:

If it were ever so, it is no longer accepted that theindividual minister provides the appropriate means alonefor communicating information from the executive arm ofgovernment to the Parliament. Question time,parliamentary committees, annual reports, the reports ofother accountability agents such as the Auditor General andthe Ombudsman are of great importance in the means usedby Parliament to inform itself. The information procedurescurrently used by Parliament in this State exhibit a randomcharacter and have obvious weaknesses and deficiencies.(WA Royal Commission 1992: II 2.4.4)

The Royal Commission noted that, while thereforms introduced by the Financial Administrationand Audit Act 1985 improved the quality ofinformation supplied to parliament by way ofannual reports, parliament’s own procedures,particularly question time and the committeesystem, were not constituted and practised in waysthat bring the executive fully under the scrutiny ofparliament (WA Royal Commission, 1992: II2.4.8).

With respect to the principle of individualministerial responsibility the Royal Commissionfound:

To the extent that it today expresses a principle ofaccountability to superiors within administrativehierarchies, it serves a valuable and well recognised

purpose, but one no different from that to be found in anyhierarchical organisation in either the public or the privatesector. It provides no justification for immunising theactions of officers and agencies from the scrutiny andreview of the public’s first forum, the Parliament, or fromagencies acting under the mandate of the Parliament. (WARoyal Commission, 1992: II 3.12.6)

2.2 Parliamentary Questions

Question time gives members of parliament,particularly the opposition, the opportunity everyparliamentary sitting day to question ministersabout the handling of their portfolios. Ministers arerequired to explain and justify the actions of thegovernment. Some commentators argue that theopportunities for political point scoring thatquestion time provides, limits its role as an effectivechannel for public sector accountability.

The Standing Orders of both Houses of the WesternAustralian Parliament permit questions to be askedof ministers relating to public affairs for which theministers are administratively responsible.Questions may also be asked of other membersrelating to any matter connected with the businessof the House in which those other members areconnected. Standing Orders also permit questions tobe put to the Leader of the Government on matterspertaining to general government policy.

Parliamentary questions can be either on notice (iewritten) or without notice (ie oral). Questions onnotice are neither asked nor answered orally withineither house. To direct a question on notice to aminister, a member must, within 30 minutes of thecommencement of the meeting of the house, providea copy of the question in written form to the Clerkat the Table, who arranges for it to be listed on theNotice Paper for the following sitting day. Whenanswered, the question and answer are included inHansard, thus becoming part of the public record.There is no set time limit for ministers to answer.

Question time is conducted independently in the twoHouses of the Western Australian Parliament. TheLegislative Assembly’s Standing Orders provide fora daily period of questions without notice at thediscretion of the Speaker. Standing Order 139 (b) ofthe Legislative Council directs that unless theHouse otherwise orders, the President shallinterrupt any business then under consideration and

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call on questions without notice at a nominated timeeach sitting day.

The Speaker of the Legislative Assembly and thePresident of the Legislative Council determine ifquestions are admissible under the Standing Orders.As a general rule, questions addressed to ministersshould only deal with matters for which they areadministratively responsible, not matters of aprivate nature.

Okely (1989: 30-31) lists as inadmissible thosequestions:

• seeking an opinion;

• based on supposition or hypothesis;

• concerning advice given by the government tothe Governor;

• seeking an interpretation of the law or a legalopinion;

• relating to matters under the control of anothergovernment;

• which are repetitious in nature and substance;

• relating to legislation not within that minister’sresponsibilities.

A minister is not required to answer a question andis entitled to respond in any manner. Where aminister is not in the questioner’s house, thequestion is directed to the member representing theminister in that house.

Some of the problems associated with question timeas an accountability measure for the public sectorare discussed in section 3 of this paper.

2.3 Parliamentary Committees

The use of committees comprising members ofparliament to assist in the work of parliament iswell established. Of the 83 legislatures listed inParliaments of the World (1986), 81 havecommittees.

Over the last 30 years, many advocates of reform to

Westminster-derived parliaments have supported anexpansion and enhancement of the committeesystem. The British House of Commons establisheda comprehensive committee system in 1979. TheCanadian House of Commons and the New ZealandParliament strengthened and enhanced theircommittee systems in the 1960s and again in themid-1980s. The Australian Senate established acomprehensive standing committee system in 1970.

Although their use is widely embraced, thestructure, type and purpose of committees variesconsiderably. The most elemental are domesticcommittees which deal with ‘in house’ matters. Inthis category are the Standing Orders, Library,Printing and House Committees of the WesternAustralian Parliament. Other committees can becategorised according to their purpose. Thisincludes the examination of legislation (see Part II),the scrutiny of financial and administrative mattersand inquiries into matters of public concern. Ingeneral terms, a committee is appointed to carry outspecific functions and report back to parliament.

In the two Houses of the Western AustralianParliament, committees are also classified as selector standing. Select committees are established toinquire into specific matters, for example youthaffairs or road safety. They cease to exist once theyhave presented their final report to parliament.Standing committees have a specific function andcontinuing existence. Generally, they cover andmonitor wider fields of inquiry such as legislation,finance and public administration. Theestablishment of committees in the WesternAustralian Parliament is governed by the respectiveStanding Orders of the Legislative Assembly andLegislative Council.

In the Western Australian context, selectcommittees are primarily used as an investigativemeasure. With the exception of the Public AccountsCommittee in 1970, attempts to introduce a systemof standing committees into the LegislativeAssembly have not carried through to completion.There are presently two Legislative Assemblystanding committees: Public Accounts andExpenditure Review; Uniform Legislation andIntergovernmental Agreements. There are also twoJoint House Standing Committees: DelegatedLegislation and Commission on Government.

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of the Treasurer’s Instructions prescribe accountingand reporting requirements for departments andstatutory authorities.

Annual reports are formally presented or tabledbefore each house of parliament by the responsibleminister, or the clerk on behalf of a minister. Oncetabled, they are available to members of parliament,the media and the public. Under LegislativeAssembly Standing Order 412 (2) (c), the PublicAccounts and Expenditure Review Committeeexamines all reports of the Auditor General afterthey have been tabled.

Some of the problems associated with annualreports as an accountability measure for the publicsector are discussed in section 3 of this paper.

2.5 Statutory Officials

Independent statutory officials report directly toparliament and are not responsible to a minister.These include the:

• Auditor General

• Commissioner for Public Sector Standards

• Director of Public Prosecutions

• Information Commissioner

• Official Corruption Commission

• Parliamentary Commissioner for AdministrativeInvestigations (Ombudsman)

Because these officials are backed by legislativeauthority to act independently, they represent apowerful support group to the parliament. Thereare few aspects of public administration in WesternAustralia which are not subject to investigation andreview by one or more of these officials. However,the WA Royal Commission and other observersbelieve that these independent officials were notable to operate at their full potential and thatparliament could be more effective in takingadvantage of their capacity for independent review.

At the time of writing, the Legislative Assembly hassix select committees (Heavy Transport; Procedure;Recycling and Waste Management; Road Safety;Ancient Shipwrecks; and Intervention in ChildBirth) and the Legislative Council two (WesternAustralian Police Service; and Cape RangeNational Park and Ningaloo Marine Park).

The Legislative Council has developed greater useof standing committees during the last decade.There are presently four: Constitutional Affairs andStatutes Revision; Estimates and FinancialOperations; Government Agencies; and Legislation.

Most committees of the Western AustralianParliament consist of five members, three chosenfrom the government parties and two from theopposition. Independent and minor party membersmay also be appointed to committees. The WesternAustralian Parliament has not adopted the BritishHouse of Commons practice where an oppositionmember is sometimes the committee chairperson.

Committees can conduct their inquiries openly or,in camera. All proceedings are recorded by theparliamentary reporters. Normally, these records,the committees’ working papers and their finalreports, remain confidential until tabled inparliament.

Committees operate by conducting their ownindependent research and calling witnesses beforethem to give testimony and supply documents. Thecommittees are usually supported by full or part-time staff to assist with research and report drafts.Committees can compel people to appear beforethem and demand answers to questions.

Some of the problems associated with parliamentarycommittees as an accountability measure for thepublic sector are discussed in section 3 of this paper.

2.4 Annual Reports

Under the provisions of the FinancialAdministration and Audit Act 1985, all governmentdepartments and agencies in Western Australia arerequired to submit an annual report containingfinancial statements, performance indicators, anoperational report and any other informationrequired by the responsible minister. Parts IX to XI

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3.1 Parliamentary Questions

Some of the problems associated withparliamentary questions as an accountabilitymeasure for the public sector are:

• The short time available for asking questions.

• Each question can only deal with a specificissue.

• It is possible for ministers to avoid directanswers to questions.

• The alternation of questions betweengovernment and opposition reduces theopportunity for sustained inquiry.

• Those asking the question are not part of theexecutive and therefore do not always possessthe facts and background which would equipthem to ask penetrating questions. All too often,ministers can avoid being pinned down by aquestion because it was phrased incorrectly orlacked focus. Because of time pressure,members of parliament may not devoteappropriate effort to researching their subjectand framing their question for good effect.

• Questions asked during question time may catchministers unprepared. They do not have thefacts before them to answer properly and eitherpromise to provide an answer in due course,prevaricate, or attack the questioner. This doesnot serve the cause of accountability.

• Written questions on notice do not have to beanswered promptly or within a set time. By thetime the questioner receives the answer, theissue may have passed.

It is necessary to consider how the political natureof question time affects its role as an accountabilityinstrument. Opposition members may ask questionsof ministers to gather information, to raise mattersof public concern or to embarrass the government.Members of the government parties may also usequestion time for reasons other than accountabilitysuch as asking a ‘Dorothy Dix’ question. These

take up a significant part of question time andcontribute little to informing parliament. Whilequestion time may be an effective forum for testingthe political skills of both government andopposition this role may overshadow theeffectiveness of question time in providing publicsector accountability.

These issues have led to various suggestions for thereform of question time, which do not seek toconstrain its political role, but enhance itsaccountability value. Measures to increase thenumber of questions asked and limit the time forministers to respond may well change question time.

There are some reforms to question time that couldimprove its scrutiny function. In the LegislativeAssembly for example, it is not possible formembers to ask supplementary questions. Thisconstrains members from taking up points theminister has made or avoided in the answer. Asupplementary question is permitted in theLegislative Council. However, as the majority ofministers are in the Legislative Assembly,supplementary questions may be of greater use inthat House.

A longer question time, time constraints on answersand tighter standing orders about relevance of answersare other commonly suggested reforms. These seek tostop ministers from using their answers as a platformfrom which to attack the opposition or state thegovernment’s virtues. It has also been suggested thatan independent Speaker would control question timein a more even handed fashion than a Speakerappointed from the government benches. In Britain forexample, the Speaker’s position is non partisan. Byconvention at election time, the Speaker seeks re-election uncontested, enabling retention of thespeakership regardless of the result of the election(Smith, 1990: 13).

The British House of Commons, however, has 651members compared with 57 in Western Australia’sLegislative Assembly. From the government’s pointof view, making the Speaker independent in theLegislative Assembly might be seen as undesirable.It would mean the loss of one party controlled vote— an important consideration if the governmentonly had a narrow majority. The opposition mightalso be concerned for the same reason.

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Reform to question on notice procedures mightimprove the use of this process as a systematicaccountability mechanism. Reid has suggested thatthe answers to questions on notice are ‘... averitable mine of information [which] is not usedvery systematically’ (Reid, 1972: 12-13). Giventhat substantial resources are used in answering thelarge number of questions on notice, it mightproduce better accountability results if theparliament were to collate the answers in a moresystematic way than at present where they arepublished as received.

Systematic review might also help members frametheir questions with greater precision and to relateanswers to other accountability measures availableto parliament, such as annual reports andministerial statements.

Ministerial answers in question time could be mademore relevant and helpful if there was a strict timelimit imposed in which to answer. This could beenforced by running the clock for each answer.Such a measure could also be an incentive foropposition members to limit their interjections whileministers are answering, since these would reducethe net time available.

Parliament has agreed to televise question timefrom the 1996 autumn session. This might forceboth questioners and ministers to discharge theirrespective responsibilities better. If questions are tobecome a more effective accountability measure,those asking questions might take greater care toask relevant, effective questions and ministers mightgenuinely try to give informative answers knowingthat a wide audience is observing their behaviourand assessing their fitness to govern on how theyhandle questions.

It has been suggested that the Legislative Councilshould be the principal house of review for theWestern Australian Parliament and amongst otherthings, this could mean that no ministers would beappointed from the Upper House. As a consequencethere would need to be a revision to the structure ofquestion time in the Council. The leader of thegovernment party in the Council could act as aconduit to pass questions and answers to and fromthe Legislative Assembly. Alternatively the Councilcould require ministers to appear before it to

answer questions for a set period each sitting day.No change would be necessary to the presentsystem of questions on notice.

Important Issues:

• To what extent does question time in theWestern Australian Parliamentcontribute to Parliament’s capacity toreview the activities of the public sectorat present?

• Can ministerial accountability beadequately tested through question time?

• How does the political nature of questiontime affect its role as an accountabilitymeasure for the public sector?

• Should the number of questions askedand/or the time allowed for question timebe increased?

• Should the length of time for ministers toanswer questions be limited?

• Should the Legislative Assembly allowsupplementary questions to be askedduring question time?

• How can the office of Speaker be mademore independent?

• Do standing orders governing theconduct of question time and questionson notice need to be reviewed?

• Will the televising of question timeenhance its accountability value?

• How could members of the LegislativeCouncil ask questions and receiveanswers if there were no ministers in thatHouse?

• Should question time always be heldearly in the day to enable maximumcoverage in the news media?

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3.2 Parliamentary Committees

Parliament’s tasks are to enact legislation,appropriate public funds and debate issues of highprinciple, as well as scrutinise ministerialadministration of the public sector. Involving bothhouses of parliament in all matters of detailedscrutiny may be far too cumbersome and timeconsuming. Specialised committees of theparliament are seen as one important way to ensurescrutiny in appropriate detail.

Committees retain all of the powers and privilegesof parliament as a whole. They can summonwitnesses to appear before them and compelanswers to questions. The committees can hold theirsessions in camera or in public. However, theeffectiveness of committees depends on the numberand quality of support staff, and other resources,available to assist the members with backgroundmaterial, facts and promising lines of inquiry.

An extensive committee system in the WesternAustralian Parliament, with committees to focus onkey aspects of public administration, would strainthe resources currently available to parliament, andwould require substantial changes to the operationof parliament and to the work of members ofparliament.

Legislative Assembly committees that have agovernment party majority and a government partychairperson, raise the question in the public mind asto whether the government’s partisan interestsmight not prevail over the parliament’s scrutiny ofgovernment. Finn (1993) suggests it is whollyunrealistic to expect a lower house in aWestminster-derived parliament to be responsiblefor sustained and systematic pursuit of executiveaccountability when the executive dominates thehouse. ‘The principal gamekeeper is the likelypoacher’ (Finn, 1993: 56). Although the WA RoyalCommission did not rule out a role for lower housecommittees, it clearly indicated its belief that, ofthe two houses, it is the Council which has thegreater capacity to utilise its members forcommittee purposes and accountability (WA RoyalCommission, 1992: II 3.9.4).

Notwithstanding this view the New Zealandexperience with multi-purpose committees indicates

that Lower House legislation committees canoperate successfully. There is also the question ofsetting up Legislative Assembly committees chairedby opposition members, a practice used in Britainfor the Public Accounts Committee. This mayprovide a powerful parliamentary tool for thepublic sector.

One suggestion, in line with the recommendation ofthe WA Royal Commission, is to emulate theSenate committee reforms. The Senate hasestablished departmentally-related committees, eachresponsible for a particular aspect of the publicsector. The Senate has eight Legislative andGeneral Purpose Standing Committees, coveringsuch areas as community affairs, economics andemployment, education and training. Each subjectarea has a reference committee and a legislationcommittee. Reference committees investigategeneral matters referred to them by the Senate,while legislation committees not only considerlegislation, but also scrutinise proposed governmentexpenditure and annual reports. Indeed, legislationcommittees have a ‘specific mandate to monitor theperformance of departments and agencies’ (SenateBrief, 1994: 5).

One important issue for the use of parliamentarycommittees in public sector scrutiny andaccountability, is the appearance of public sectoremployees before such committees. Despitepublished guidelines, there is confusion about theway public servants should act and the extent towhich they should answer to parliamentarycommittees given their obligation to the governmentof the day. Public servants appearing as witnessesare likely to be asked to explain government policyor produce documents to the committee. Underexisting guidelines, both situations presentdifficulties for witnesses: government policy may bereported or stated but not commented upon. Attimes, government policy might still be in themaking and subject to further development.Documents might disclose advice given to aminister by a public servant on sensitive matters ofpolicy.

Legislative Council Standing Order 359 refers tothis situation:

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Where a committee examines a public servant, questions ofpolicy shall not be asked of that person but shall bedirected to the responsible Minister. A public servant isentitled to decline to answer any question on a matter ofpolicy. (Legislative Council 1994: 121)

While this appears to provide appropriateprotection to public servants, evidence from theFederal Parliament suggests there are problemswhich confront public servants who appear beforesuch committees. Harman (1994: 5) refers toinconsistencies which can occur in the multiplereporting lines, or paths of accountability now inoperation ‘... these suggest that accountability isbetter depicted as a matrix of relationships, not asingle chain’. Smith and Corbett (1995) describe indetail the dilemmas and career-threatening choiceswhich can face public servants who find themselvesbeing questioned in an aggressive, hostile mannerby members of a parliamentary committee. The civilrights of public servants can be at issue in the broadercontext of shared responsibilities among publicservants, members of parliament and ministers.

If there is to be greater use of committees acting asaccountability measures, issues associated withmultiple reporting obligations must be considered.Harman suggests that if this is not addressed ‘... wemay be creating situations where two separateobligations are incompatible, or at best, it is amatter of personal judgement and quick decisionmaking as to which should have precedence’(Harman, 1994: 2).

It has been suggested by a recently retired seniorpublic servant that, although there can be noquarrel with the demand by parliamentarians forinformation, there is a feeling in the public sectorthat, despite a great deal of effort by departments toinform parliament, there is rarely evidence thatanyone has looked at the information produced.

From questions asked at parliamentary committees it isoften apparent members have failed to comprehendinformation that is publicly available. Parliamentarianshave many things to do and wading through an enormousmass of material is very time consuming.(Hyslop, 1993: 57)

Evans (1992) and Skene (1990) suggest that themost successful committees have been those thatare established to review legislation.

A support structure for committees could comprise amixture of permanent, part-time and consulting staff.These could either be assembled in a pool fromwhich each committee could draw as needed orpersonnel could be attached to particular committees.However, the parliament does not sit throughout theyear and committees would need to ensure anadequate and productive work program to attracttalented research staff. Parliament would also haveto consider the long-term career paths available to itsresearch and committee support staff.Finally, our parliament would have to be expandedto accommodate the committees and their staff.

Important Issues:

• How effective is the current committeesystem of the Western AustralianParliament in ensuring public sectoraccountability?

• Should the Legislative Council’scommittee system be restructured alongthe lines of the Senate?

• What matters should fall within thescope of parliamentary committees in theLegislative Assembly?

• What changes would be necessary forthe Western Australian Parliament tosustain a comprehensive committeesystem?

• Should members of the governmentparties chair committees or should therole be given to non-governmentmembers?

• What should be the role of publicservants appearing before parliamentarycommittees?

• What changes to the operation ofParliament need to be made to ensureeffective review of the public sector byparliamentary committees?

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3.3 Annual Reports

Departments and agencies are required to reportannually to their responsible minister, in accordancewith the Financial Administration and Audit Act1985. Ministers customarily table these reports inparliament, thus making them public. There iscurrently no systematic scrutiny by parliament ofannual reports, but opposition spokespersons mayexamine annual reports that fall within theirportfolio interests and backbenchers may look atparticular annual reports as their interests dictate.

One problem with annual reports from parliament’sviewpoint could be that they deal with past events.Departmental annual reports are commonlypresented to parliament in the period September toDecember each year, for the financial year ended onthe previous 30 June. They sometimes refer tofuture plans and commitments but rarely givedetails. Annual reports provide little usefulinformation about up-to-minute happenings, and thecurrent financial position of departments andagencies. In particular, they do not tell parliamentabout major financial and policy commitmentsmade since the close of the previous financial year.The parliament must rely on ministers to announcethese publicly or inform members throughstatements in the House.

Another issue is the intended audience andappropriate content of annual reports. The JudgingCriteria for the 1995 WS Lonnie Awards forExcellence in Annual Reporting by WesternAustralian Government Agencies, conducted by theRoyal Institute for Public Administration Australia(RIPAA) - WA Division, suggest that the focus is tomeet the information needs of parliament,employees, customers and the community. It may bedoubtful if one report can satisfy the needs of allthese groups. The Public Accounts and ExpenditureReview Committee has stated that ‘it [is] essentialthat the public sector keeps clearly in mind thatParliament is the primary audience and the needs ofany other audience must be secondary’ (PAERC,1991: 4).

There is a question as to what structures could beput in place to facilitate parliamentary scrutiny ofannual reports. Possibilities include establishing astanding committee in the Legislative Council with

specific responsibility for reviewing annual reports,or creating a standing committee system wherebyall departments and agencies come under thescrutiny of a nominated committee. It would be theresponsibility of each committee to scrutinise theannual reports of agencies under their purview. Inthe Senate for example, various standingcommittees review the annual reports that comeunder their jurisdiction, and a Report on AnnualReports is published.

A discussion of the role of the Auditor General withrespect to annual reports is contained in theCommission on Government Discussion PaperNo. 2.

Important Issues:

• How should government agencies reportto parliament?

• What structures should be put in placeto facilitate scrutiny of public sectorannual reports?

• Should there be a parliamentarycommittee with responsibility formonitoring the performance of publicsector agencies?

• Should agencies be required to report toparliament on a more frequent basis tosupplement annual reports?

• Could reporting dates be staggered toprovide a steady flow of reports over alonger period?

• Can annual reports be improved toenhance accountability?

• Who should be the primary audience forannual reports?

3.4 Prorogation

The parliamentary cycle operates in sittings,sessions and parliaments. A sitting refers to a singleday’s business, a session refers to a block of sitting

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days (the autumn and spring sessions for example),and a parliament exists from the time the governorsummons parliament to meet after a general electionuntil it is dissolved before the next election; that is,about four years.

Prorogation is the action taken by the Governor toterminate a session of parliament. Prorogation isusually followed by a period of recess prior toeither the opening of a new session or thedissolution of parliament before a general election.All parliamentary activities are suspended uponprorogation, including the proceedings ofcommittees, other than standing committees. Whileprorogation ensures that records of mostparliamentary proceedings can be kept for discretesessions, it is not a formal requirement. Indeed, asone commentator noted, ‘business could beconducted in sessions extending over several yearsand in some countries, for example Canada, this isfrequently done’ (Griffith and Ryle, 1989: 182).

Select committee inquiries face a major disruptionfrom prorogation. Not only do they have to suspendall activities, but they must be reappointed in thenext session if their work has not been completed.Governments have been accused of using the deviceof proroguing parliament explicitly to close off theactivities of select committees whose inquiries wereembarrassing to the government. By contrast,standing committees, which are appointed for thelife of a parliament, can continue their work despiteprorogation.

There was considerable public controversy inMarch 1995 when a Legislative Council selectcommittee continued to hear in-camera evidence,unaware that Parliament had earlier beenprorogued.

Important Issues:

• Should select committees be able tocontinue their work when Parliament hasbeen prorogued?

• Should Parliament continue withoutprorogation between elections?

3.5 Parliamentary Library

The WA Royal Commission stressed the concept of‘information as the key to accountability’ (1992: II2.1.10 & 2.4.2) in relation to parliament’s scrutinyand review role. In a broader context it is oftenstated that information is power. The executive,with ready access to all the resources of thegovernment bureaucracy is information rich andincreasingly powerful. Parliament, in comparison,is information poor.

The establishment of a parliamentary library atWestminster in the early nineteenth centurycorresponded with a dramatic increase inparliamentary business and demands from membersfor a reliable, impartial source of informationimmediately at hand and available at all hours.Staff of parliamentary libraries fulfil an importantservice to members. Their role in supplyinginformation has been described as ‘... a question ofidentifying, clarifying or anticipating needs anddelivering information in accessible form within thetime available’ (Canadian Study of ParliamentGroup and the Association of ParliamentaryLibrarians in Canada, 1988: 6). The growth incommittee work in particular, requires ready accessto appropriate information resources.

The reports of standing committees frequently referto their staffing and resource requirements. Thepossible development of an expanded committeestructure has implications for both the directresourcing of committees and the ability of theparliamentary library to satisfy their informationrequirements. The Western AustralianParliamentary Library is staffed by professionallibrary and clerical staff. Unlike the House ofCommons, the Australian Federal Parliament andall other Australian state parliaments, the WesternAustralian Parliamentary Library does not employsubject-specialist research staff to undertakedetailed research for members or committees, orprepare background papers on subjects of generalor specific interest.

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Important Issues:

• What should be the role of theparliamentary library in the scrutiny ofthe public sector?

• Does the parliamentary librarysatisfactorily meet the information needsof parliament and its committees?

• Could parliament’s information needsbetter be provided by an alternativeinformation service?

• Should the parliamentary library employsubject-specialist research staff?

4 SUMMARY

Part I of this discussion paper has addressed theissue of how the Western Australian Parliamentmight bring the entire public sector under itsscrutiny and review. The concerns of the WA RoyalCommission and their recommendation to examinethe means best suited to be adopted by parliamentto bring the entire public sector under its scrutinyand review are restated, and an overview of thecurrent situation in Western Australia of theoperation of parliamentary committees, questiontime and annual reports provided. The paper thenproceeds to examine in greater detail aspects of theparliamentary environment, parliamentarycommittees, question time and annual reports andraises a range of issues for consideration within thecontext of Specified Matter 17.

Part II PARLIAMENTARY COMMITTEESON LEGISLATION

1 INTRODUCTION

Part II addresses Specified Matter 18 which readsas follows:

18. The role of parliamentary committees on legislationincluding the accommodation of the right of thepublic to make representations on legislativemeasures referred to any such committee.

Section 2.3 in Part I of this discussion paperoutlines the general role of parliamentarycommittees in the Western Australian Parliament.Part II looks at the specific role of committees onlegislation. Committees to scrutinise the quality andstandard of government legislation have beenestablished in many Westminster-derivedparliaments. Of particular interest to WesternAustralians is the experience of other Australianstates, New Zealand and the Australian Senate.

1.1 Function and Roles of a LegislationCommittee

Parliamentary committees on legislation assist thesmooth and timely passage of bills through the houseof parliament involved. They also help ensure that abill is soundly conceived and will result in a lawwhich has the intended effect. Such committees cantake more time and go into all the relevant detailsassociated with proposed legislation. Given the timepressures on parliament as a whole, the full housewould not be able to give similar detailed scrutiny.

Committees conduct inquiries by invitingsubmissions, hearing evidence, undertaking theirown research and reporting their findings to thehouse. Committees also consider proposed bills,scrutinise the operation of existing legislation andsometimes consider policy issues. They also providea potential access point for citizens to participate inlaw-making and policy review.

1.2 Powers of Committees

Committees have only those powers delegated tothem by the parliament or the house whichappointed them. Their powers usually include theability to send for persons, papers and records and

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to question witnesses under oath. The power toexamine witnesses enables a committee to asksearching questions and bring to bear experttestimony.

A house of parliament could grant a legislationcommittee power to:

• consider and report only on bills referred to itby the house on a vote;

• initiate scrutiny of bills before they areintroduced or at any stage in their passagethrough the house;

• scrutinise proposed bills before they are printedfor introduction;

or some combination of these.

1.3 Other Jurisdictions

The WA Royal Commission pointed out, that ‘[t]heuse of legislation committees to provide for a moreeffective examination of Bills than is possible byHouses of Parliament sitting as such, is a growingphenomenon in “Westminster” democracies’ (WARoyal Commission, 1992: II 5.7.3). TheCommonwealth and other states and territoryparliaments have reflected this trend by having atleast one committee dealing specifically with thescrutiny of legislation. When comparing practicesin other jurisdictions, it is apparent that no singlemodel is used. Legislatures establish committeeswhich best suit their particular needs.

In New Zealand, all legislation is referred tocommittees. These committees have the power toamend legislation. By dividing legislative work intodiscrete policy areas and placing a committee incharge of each, the New Zealand Parliament hascreated legislative specialisation across the fullpolicy spectrum. Committees are authorised tobegin inquiries without formal reference from theHouse (Skene 1990: 5). The main reason the NewZealand Parliament restructured its committeesystem was to enhance executive accountability toparliament and to give improved oversight of theadministration of government (Skene 1990: 11).

The Federal Senate adopted new procedures for the

examination of bills by committees in 1989. ASelection of Bills Committee examines all billsbefore the Senate and can refer bills to legislation,or general purpose, standing or select committees.The Senate also has two legislative scrutinystanding committees. The Regulations andOrdinances Committee scrutinises all delegatedlegislation to ensure proposed regulations complywith civil liberties and parliamentary propriety,confining itself to technical rather than policydetails. The Scrutiny of Bills Committee scrutinisesreferred bills in order to determine whether personalfreedoms are infringed, or legislative powersinappropriately delegated.


2.1 Legislative Process

Legislation can originate in three main ways:

• by ministers instructing their department toprepare legislation to implement governmentpolicy;

• through recommendations made by departmentsand agencies to their minister for new oramending legislation;

• following government-to-governmentagreements for national legislative schemes.

Before an act of parliament becomes law it beginsits life as a bill, which goes through a number ofpreliminary stages prior to its introduction inparliament. A minister must approve the concept ofthe bill and submit the idea to Cabinet in a formalsubmission for approval. Before this, there may beministerial and agency consultations with interestedparties. If Cabinet approves the proposal, it is thensent to the Parliamentary Counsel to prepare a draftbill. During the drafting process, some furtherconsultations with stakeholders may take place.This is organised by the minister concerned,assisted by his or her department. When drafting iscomplete, the sponsoring minister again submits thebill to Cabinet for approval to print and introduce itinto parliament.

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Bills can be introduced into either house ofparliament with the exception of money bills, whichmay only be initiated in the Legislative Assembly.There are usually four main steps in the passage ofthe bill through each house:

• First reading, where the responsible ministerannounces the title of the bill to the house.

• Second reading, where the sponsoring ministerusually delivers a substantial speech about thecontent and intended purpose of the bill. This isfollowed at a later time by a full debate on thebill, called the second reading debate. Bothgovernment and opposition members speak onthe bill.

• Committee stage, or committee of the whole,where the house acts as a review committee toconsider and debate each clause of the bill whenamendments can be made. In the Upper House,the bill may be sent to the LegislationCommittee at this point for consideration andreport.

• Third reading which completes the passagethrough that house. The bill may then be sent tothe other house where the same steps are repeated.

When bills have been passed by both houses ofParliament, they are presented to the Governor forroyal assent. Once the assent is given, the billbecomes an act. However, acts do not come intoeffect until they are proclaimed, which is either at adate set by the legislation itself or at the discretionof the government. Proclamations are made by theGovernor on advice of the Executive Council andpublished in the Government Gazette.

2.2 Standing Committees

The Western Australian Legislative Council has aStanding Committee on Legislation. The Committeeconsiders the policy aspects of bills referred to itand reports to the Council. It cannot amend bills.

The Legislative Assembly has a StandingCommittee on Uniform Legislation andIntergovernmental Agreements. It is concerned withbills which form part of a national legislativescheme involving similar bills in the

Commonwealth, other state and territoryparliaments. Most recently it has considered andreported on the proposal for Western Australia tojoin the national mutual recognition scheme forproducts, services and trade qualifications.

The Standing Committee on Legislation wasestablished by the Legislative Council in December1989. Its role is to scrutinise legislation during itspassage through the upper house. The Committeesees its objectives as:

• giving the public direct access to the legislativeprocess;

• providing a forum in which various communityviews can be heard;

• enabling details of the wording of the bill to besettled in a more efficient way; and

• accessing departmental information to assist inthe legislative process (Standing Committee onLegislation, 1991: 1-2).

The Legislative Assembly established in August 1993the Standing Committee on Uniform Legislation andIntergovernmental Agreements. The general aim ofthis committee is to provide Parliament with amechanism to scrutinise the appropriateness of suchlegislation and agreements from Western Australia’sstandpoint. Ministers from around Australia attendministerial council meetings to discuss and formulatevarious uniform national schemes. The principalterm of reference of this committee is to:

inquire into, consider and report on matters relating toproposed or current intergovernmental agreements anduniform legislation schemes involving the Commonwealth,States and Territories, or any combination of States andTerritories without the participation of the Commonwealth(Standing Committee on Uniform Legislation andIntergovernmental Agreements, 1994: 2).

2.3 Delegated Legislation

Acts of parliament often contain a power to makeregulations, by-laws, orders or all three. These arecalled delegated legislation and are made byministers, departments and statutory authorities.The legislation may also be known as subordinateor secondary legislation, because it relies on a

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principal act for its existence. Delegated legislationincludes rules, regulations and by-laws, which areimpractical to include in acts because they are tootechnical or are likely to require periodic change. Alarge number of the legislative rules affectingcitizens are in the form of delegated legislation.

In December 1987, the Legislative Council andLegislative Assembly established the Joint StandingCommittee on Delegated Legislation. It considersand reports on any rule, regulation or by-lawproposed under a regulatory power in an act which:

• appears not to be within power or not to be inaccord with the object of the relevant act;

• unduly trespasses on established rights,freedoms or liberties;

• contains matters which ought properly to bedealt with by an act of parliament; and

• unduly makes rights dependent uponadministrative, and not judicial, decisions(Okely, 1989: 79).

All regulations, rules, orders and by-laws must bepublished in the Government Gazette and tabled inparliament within six sitting days of gazettal.Parliament then has 14 sitting days to consider them.During this time, either House can disallow them. Ifneither House does so, they come into force. Suchdelegated legislation is seldom debated in the House.

Part VIII Division I of the Local Government Act1960 enables local government to make by-laws inaccordance with the Act. The by-laws, including theamendments to by-laws, are required to be adoptedby the local authority, advertised in the newspaperand be available for public comment during aperiod of 21 days. The local authority is thenrequired to consider any public submissions, toformally adopt the by-law and to forward it to theMinister for Local Government. The by-laws arethen required to be confirmed by the Governorbefore being published in the Government Gazetteand tabled in Parliament.

2.4 Public Input in the Legislative Process

As described earlier, consultation may occur

between the government and stakeholders at thepre-legislative stage, but this is not assured. Thereare only limited opportunities for the public toparticipate once a bill has embarked upon itspassage through parliament, apart from billsreferred to the Standing Committee on Legislation.While this committee can call for publicsubmissions and hear evidence from interestedparties, bills may or may not be referred to it. A billis only directed to the committee if the majority ofthe members of the Legislative Council agree to do so.

2.5 Role of the Legislative Council

In 1984 a Legislative Council Select CommitteeInterim Report discussed, among other things, therole of upper houses. The report explained that, inprinciple, there was a need for a committee systemto carry out review and investigation functions. Thereport went on to say that ‘the preservation of thebicameral system lies in defining with some precisionthe functions a second chamber may usually performwithout being seen as a threat to the government ofthe day’ (Select Committee, 1985: 1.4).

Odgers’ Australian Senate Practice (Evans, 1995:11-12) argues that an upper house role is to:

• ensure that legislative measures express theconsidered views of the community;

• provide an opportunity for contentiouslegislation to be subject to scrutiny;

• provide protection against the government, witha disciplined majority in the lower house,introducing the extreme measures for which itdoes not have broad community support ;

• exercise scrutiny over the executive regulation-making power; and

• provide effective scrutiny of governments.

The WA Royal Commission drew attention to therole of an upper house in its Part II report:

When a government commands a majority in both Housesof a bicameral legislature, neither chamber is likely toprovide a stringent check upon the executive’s activities.When an Opposition controls the Upper House, there willbe a tendency for review to degenerate into mere

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obstruction. Neither situation nurtures the accountabilitywhich parliamentary government should properlyguarantee. Both result in concealment: the former throughcomplacency, the latter through evasion. (WA RoyalCommission, 1992: II 5.2.1).


3.1 Parliamentary Review

Parliament’s ability to devote sufficient time andresources to scrutinise legislation has decreased asthe legislative work load has increased. A commonproblem experienced by most parliaments has beenan explosion of legislation. At any one time in theWestern Australian Parliament, there areapproximately 20 to 25 bills in various stages ofprogress through the two houses. Our parliamenttypically passes five to seven bills each sittingweek. This equates to about 80 to 95 bills a year.Late night, or even all-night sittings on Tuesdaysand Wednesdays have occurred to cope with thebacklog of bills. On occasions, one or the otherHouse sits on Friday after a late night session onThursday. This has occurred especially at the endof sessions resulting in what has been termedlegislation by exhaustion.

One solution would be for Parliament to sit for moreweeks in each year. For 1995, the Parliament will sitfor 22 or possibly 23, weeks, each comprising threesitting days, Tuesday to Thursday inclusive. Usually,Parliament rises at 6.00pm on Thursdays and does notresume until the following Tuesday.

If this situation continues, it is argued parliamentcould end up passing legislation without properscrutiny and review. However, as the WA RoyalCommission warned, ‘Parliament is not, and shouldnot be allowed to become, the rubber-stamp ofmeasures put before it’ (WA Royal Commission,1992: II 5.7.4).

Important Issues:

• Does Parliament sit for a sufficientperiod each year to cope properly withthe business before it?

• If Parliament sat longer, would there bemore time for public sector scrutinyfunctions, as well as for consideringlegislation?

• Can Parliament properly consider billswhen sitting for long hours into the eveningand the early hours of the next day?

• Can the Legislative Council perform agenuine review role when it is controlledby the government parties?

• Should the Western AustralianParliament conduct more systematicreviews of bills and subordinatelegislation?

• If so, what appropriate measures couldbe considered?

• How can Parliament ensure that the bestconsideration is given to legislativeproposals?

• If the Legislative Council changes to ahouse of review, what would be theconsequences for its organisation andmode of operation?

3.2.Parliamentary Committees on Legislation

As early as 1973, a Legislative Assembly SelectCommittee tabled a report on the suitability of acommittee system in the Legislative Assembly. Themajority report argued that a structured committeesystem would free the house to concentrate on majorissues. Committee members would gain expertise andthere would be provision for more involvement bythe public in the legislative process. The role ofparliament would thus become better understood. Aminority report was attached which disagreed on anumber of the recommendations. It stated, amongother things, that more committees would result innegating members’ rights to suggest amendmentsand that the Committee of the Whole House wouldbe eliminated (Select Committee, 1973: 9-12).

Legislation committees could exercise a gate-keeping role. They could consider bills before they

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are formally introduced into a house. Bills withobvious flaws, or where there had been insufficientconsultation with interested parties, could bereferred back to the sponsoring minister for revision.This would save valuable parliamentary time.

A legislation committee functioning effectivelycould reduce considerably the need for the entirehouse to sit in committee for the clause by clausereview of a bill after the second reading debate.Members interested in a bill, but not on thecommittee, could make representations to thecommittee. However, some might argue that theirright to put amendments to bills on the floor of thehouse should not be eroded.

Parliamentarians need time, resources andinformation to properly consider and passlegislation. Whilst some bills are relativelyuncomplicated or uncontroversial, others are morecomplex, requiring detailed attention, both in regardto their content and possible effect on thecommunity. It was for this reason that theLegislative Council Standing Committee onLegislation was established. However, thiscommittee is only used on a case-by-case basis andthere is no certainty that a bill will be directed to it.

An alternative arrangement could be to refer allnon-controversial and unopposed bills to theStanding Committee on Legislation, leaving majoror controversial legislation to be debated in theHouse. This would accord with the traditional viewthat parliamentarians work in a more bipartisanmanner in committees than in the politically-charged floor of the House.

In the Federal Senate, departmentally-relatedcommittees have been established, each responsiblefor particular aspects of public administration.Each subject area has a reference committee and alegislation committee. Reference committeesinvestigate general matters referred to them by theSenate, while legislation committees not onlyconsider bills, but also scrutinise proposedgovernment expenditure and annual reports.Legislation committees have a ‘specific mandate tomonitor the performance of departments andagencies’ (Senate Brief, 1994: 5).

Important Issues:

• Should all bills go before a legislationcommittee of each House for preliminaryreview before they are formallyintroduced into the Parliament?

• Would greater use of legislationcommittees reduce members’ rights tosuggest changes to legislation?

• If all bills were cleared by legislationcommittees before their passage throughthe House, what effect would this haveon Parliament as a whole?

• How should legislation committees beset up?

• Should a parliamentary committee orsome other body have responsibility forperiodically reviewing regulations andensuring they continue to achieve theirobjectives?

• Is the current level of legislative reviewappropriate?

• Should all bills introduced into theParliament be referred to committees forexamination and scrutiny?

• To what extent should governmentproposals be open to scrutiny beforethey are committed to draft bills andintroduced into Parliament?

3.3 Public Representations and Participation

Although the public is represented by parliament,this does not mean that people cannot participate inthe parliamentary process. Indeed, the publicinteracts with parliament in a variety of ways, suchas through letters to parliamentarians, presentingpetitions and involvement with parliamentarycommittees. Specified Matter 18 refers to “the rightof the public to make representations on legislativemeasures ...”. There is a need to consider how thisright might be accommodated and exercised.

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Public participation in the legislative process isseen by many as a desirable goal. Whenconsultation occurs, differences of opinion may beaccommodated, fresh perspectives added andaffected parties can be heard. For example, theStanding Committee on Legislation consulted withinterest groups when examining the Criminal CodeAmendment (Racist Harassment and Incitement toRacial Hatred) Bill 1990. The committee noted:

This resulted in a Bill that was satisfactory not only to theParliament but also to the witnesses who appeared beforethe Committee. If the Committee can play this rolereconciling differences in the community, then it is a veryvaluable role. (Standing Committee on Legislation, 1991: 4)

There are, however, two factors which can affectthe ability of citizens to give their views onlegislation. The first is the limited extent of publicknowledge about the parliamentary process. Thesecond is the lack of formal arrangements whichcan accommodate the public’s right to participate inlegislative matters. Although organised groupsusually have the knowledge, resources and contactsto lobby the government, some groups andindividuals may be left out of the consultativeprocess. For this reason, procedures could beestablished to allow individuals or groups who wishto comment on bills passing through parliament todo so. As the WA Royal Commission stressed:

Consistent with democratic principle...it is entirelyappropriate that where a Bill is sent to a committee onlegislation for examination, those affected by it, those whocan contribute to its consideration, should be given theopportunity to do so. (WA Royal Commission, 1992: II 5.7.7)

Clearly a legislation committee has more scope toinvite public submissions and oral evidence about abill than the entire house. To be effective, thecommittee would have to communicate its sittingtimes, place and subject matter, both to the publicat large and to specific known interested parties.Country people could be heard using teleconferencefacilities at members’ electorate offices or telecentres.

The exercise of the right to make representationraises logistic and procedural questions, forinstance, how the public appear before thecommittee, and for how long should they speak.There is also the question of the effect upon theprocess if, as is normal, evidence is taken on oath.

If the public is to be more closely involved inconsidering and commenting on legislation comingbefore parliament, questions of timing in thelegislative sequence arise. If public participationoccurred prior to introduction of the bill it wouldoccur as part of the committee’s gate-keepingfunction mentioned earlier. Another approachwould be to require all legislation to be referred tothe committee, which as a matter of course, wouldalways open it to public comment. If this were thecase, participation would occur after the secondreading debate and before the bill is considered bythe house sitting as a whole.

An issue discussed at the Commission onGovernment’s first public seminar was improvingthe quality of public decision-making. At thisseminar, mention was made of the need to changethe way legislation was enacted to allow for morepublic discussion. For example, one suggestion wasthat no bill proceed through to its second readingstage (when it is debated for the first time inparliament) until 30 calendar days had passed.Another proposal was that bills should lay beforeparliament for a fixed period of time, such as threemonths, before becoming law. It was thought theseoptions would allow the public more time toparticipate and make their contribution.

The formal consultation process varies in otherjurisdictions. For example, the Victorian SubordinateLegislation (Revocation) Act 1984 and the NSWSubordinate Legislation Act 1989 require publicconsultation on delegated legislation (AdministrativeReview Council, 1992: 5.3 - 5.10). The procedure forconsultation in both states involves the publication of anotice in their respective Government Gazettes, a dailynewspaper and, where appropriate, a relevant trade,professional, business or public interest journal(Administrative Review Council, 1992: 5.12 & 5.24).

In reviewing legislation, the Australian Senate cancall for public submission, and its committees travelall over Australia to gather community views.

Parliaments overseas have introduced similarmeasures. In the United Kingdom the consultationprocess with the public and interested organisationsstarts before the drafting of some bills. This is doneby publishing either a ‘Green Paper’ (exploratory)or a ‘White Paper’ (outlining legislative intentions).

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Interested parties are invited to submit theircomments and suggestions. Both papers may bedebated in parliament before the governmentproceeds to legislation (Pick, 1992: 11).

In New Zealand, advertising for public submissionsis a normal function in the legislative process. Afterlegislation is introduced into the parliament,members of the public and interested parties areinvited to comment and provide written and oralsubmissions on pending legislation. The public nowexpect to have a significant input into legislationand the committees which review proposedlegislation regard the public input as important(New Zealand House of Representatives, Office ofthe Clerk: Communication to Commission onGovernment).

Greater use of legislation committees, coupledwith wide publicity about the nature of newlegislation, the timetable for consultation andassistance for those who wished to express viewson legislation would enhance the public’sopportunity for participation. In addition,government departments could be required toadvertise the intention to initiate new legislation.All legislation would have to be referred to therelevant committee and procedures for publiccomment would have to be established. If thisoccurred, substantial changes might have to bemade to legislative procedures in parliament and tomany other aspects of the operation of parliament.

A right to make representation, however, is strongerthan an opportunity to participate. This could beaccommodated by requiring that there was a periodduring the passage of legislation during whichpublic comments were called for in the form ofwritten submissions. This could be supplemented,where required, by public hearings before aparliamentary committee.

Important Issues:

• Should the public have a right to becomeinvolved in the consideration of billsduring their passage through Parliament?

• If so, how should this right be exercisedand what should it entail?

• How should a legislation committeecommunicate with the public to seektheir involvement?

• Should departments be required toadvertise and seek public comments onproposed regulations?

• Is the current level of communityinvolvement in legislation adequate?

• What procedures should be developed toallow the public to comment onlegislation placed before Parliament?

• Who should participate - anyone, or onlythose people affected by proposedlegislation?

• Should bills be required to go beforeParliament for a fixed period of time toaccommodate public discussion? If so,what should that time period be?

• When bills are referred to parliamentarycommittees, should the public be invited togive its views to the committee concerned?

• Should bills about to be introduced intoParliament be advertised?

• Should the daily Notice Papers of bothHouses of Parliament be published inour newspapers?

3.4 Delegated Legislation

Delegated legislation must be laid beforeParliament for 14 days and may be disallowed byeither house. If neither house objects, the delegatedrules, regulations, orders or by-laws remain inforce. Despite its subordinate status, delegatedlegislation is important and it may be argued that itshould be affirmed in a positive way by Parliament,rather than pass by default.

An alternative approach would be to refer alldelegated legislation to the Joint DelegatedLegislation Committee. The committee couldconsider the operation, practicability, intended

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• Would the 14 sitting day period whendelegated legislation lies before eachhouse be sufficient for a legislationcommittee to give it properconsideration?

• Should there be parliamentary scrutinyof delegated legislation made under theLocal Government Act?

4 SUMMARY

Part II of this discussion paper has addressed theissue of parliamentary committees on legislation,including the accommodation of the right of thepublic to make representation on legislativemeasures referred to any such committees. Thediscussion relating to parliamentary committees inPart I of this discussion paper is also relevant tothis matter.

The paper outlines the legislative process inWestern Australia and raises a range of issues forconsideration by the reader. Experience from otherstates and the national legislature is also mentionedwhere it might be adapted for the WesternAustralian Parliament.

REFERENCES

Administrative Review Council (1992) RuleMaking by Commonwealth Agencies (Report No.35) Canberra: AGPS

Canadian Study of Parliament Group & theAssociation of Parliamentary Librarians in Canada(1988) Research and Information forParliamentarians Ottawa

Evans, Harry (editor) (1995) Odgers’ AustralianSenate Practice (7th edition) Canberra: AGPS

Evans, Harry (1992) ‘Parliament: Achievementsand Challenges’ Papers on Parliament No. 18Canberra: Department of the Senate

Finn, Paul (1993) ‘Public Trust and PublicAccountability’ The Australian Quarterly 65 (2):50-59

effect and possible adverse community effects inmore detail than the entire House could do. In thisway, there would be a systematic approach to dealingwith all delegated legislation. If the committee foundproblems or disagreed with the proposed legislation itcould so inform the House, which could then move todisallow the delegated legislation.

As things stand, there is no systematic record orcount of delegated legislation, beyond a generalunderstanding that it is voluminous. Regulationsmade under one act can conflict or overlap withthose made under another. In many ways, it is therules, by-laws and regulations made under aprincipal act which affect people more directly thanthe originating legislation itself.

Because delegated legislation is prepared byministers, with the assistance of their departments,there is considerable scope for the arbitrary use ofdelegated power, both by the executive governmentand the bureaucracy. Principal acts, which containregulation-making provisions, are usually couchedin general terms to cover wide application andavoid loopholes. But rules, orders, by-laws andregulations can be very specific, acting withprecision and force in particular circumstances.

Important Issues:

• Should ministers be required to providethe Joint Delegated LegislationCommittee with an analysis of proposedregulations?

• At present, Parliament can disallowdelegated legislation but is not requiredto approve it. Should all delegatedlegislation require the active consent ofparliament?

• Should all delegated legislation gobefore the Joint Delegated LegislationCommittee for systematic review andaffirmation?

• If the public should be involved inconsidering principal legislation, shouldthey also have the right to becomeinvolved in delegated legislation?

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Griffith, J. and Michael Ryle (1989) Parliament:Functions, Practice and Procedures London: Sweet& Maxwell

Harman, Elizabeth (1994) ‘Accountability andChallenges for Australian Governments’ AustralianJournal of Political Science 29: 1-17

Hyslop, Robert (1993) Australian MandarinsCanberra: AGPS

International Centre for ParliamentaryDocumentation of the Inter-Parliamentary Union(1986) Parliaments of the World: a ComparativeReference Compendium New York: Facts on File

New Zealand, House of Representatives, Office ofthe Clerk (31 May 1995) Communication toCommission on Government

Okely, Bruce (1989) A Guide to ParliamentaryProcedure Perth: State Print

Pick, C. (1992) Passing Legislation in BritainForeign and Commonwealth Office

Queensland, Parliamentary Committee for Electoraland Administrative Review (PCEAR) (1993)Report on Review of Parliamentary Committees(Report No. 19)

Reid, G. (1972) ‘Parliament and the Bureaucracy’in J Wilkes (editor) Parliament, Bureaucracy,Citizens: Who Runs Australia? Sydney: Angus &Robertson

Senate Department (1994) ‘Senate Committees’Senate Brief 4: 1-12

Skene, Geoffe (1990) New Zealand ParliamentaryCommittees: An Analysis for the Institute of PolicyStudies Wellington: Victoria University Institute ofPolicy Studies

Smith, A. D. (1990) ‘Parliament Degraded’ IPAReview Autumn: 10-14

Smith, Chris and David Corbett (1995)‘Parliamentary Committees, Public Servants andDue Process’ Australian Journal of PublicAdministration 54(1): 19-34

Western Australia, Legislative Assembly PublicAccounts and Expenditure Review Committee(PAERC) (1991) Annual Reporting and theParliament: Discussion Paper No. 1 Perth

Western Australia, Legislative Assembly (1991)Standing Orders (Reprinted with amendments andannotations) Perth: State Print

Western Australia, Legislative Council (1994)Standing Orders Perth: State Print

Western Australia, Legislative Council StandingCommittee on Legislation (1991) A Review ofSome Aspects of the Operations of the Committeeto Date Perth


Western Australia, Select Committee of theLegislative Assembly Appointed to Inquire into theParliamentary Committee System (1973) ReportPerth

Western Australia, Select Committee on aCommittee System in the Legislative Council(1985) Report Perth

Western Australia, Standing Committee on UniformLegislation and Intergovernmental Agreements(1994) First Report - Establishment and AnalysisPerth

LEGISLATION


Treasurer's Instructions

Interpretation Act 1984


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This paper identifies some of the issues whichmay be relevant to the Commission’s task andprovides background information. The issuesidentified and information provided are notintended to be exhaustive. Submissions mayaddress any other relevant matters.

The Commission invites people andorganisations to make written submissions onthe issues set out in this Discussion Paper.Those preparing submissions should feel free toinclude any other issues they consider relevant,whether or not they are mentioned in thispaper.

SUBMISSIONS

Please feel free to make your submission on eitherCOG’s questionnaire form or you may prepareyour own submission if you prefer.

The Commission welcomes all submissions andrecognises that people may have to make a specialeffort to prepare them. If people need advice orhelp with their submissions, we invite them totelephone us.

The following are guidelines only. They aredesigned to assist members of the public wishingto make a submission. Please attempt asubmission, whether or not it conforms to theguidelines.

FORMAT


(a) are legible, and preferably machine-typedwith single line spacing;


address and telephone number; and(e) are bound together with a staple or secured

with a paper clip and are on A4 standard sizedpaper;

ORare submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a. (This is especially important for lengthysubmissions.)

PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if andto the extent the Commission considers thosematters relevant to the prevention of corrupt,illegal or improper conduct of public officials,including government ministers and members ofparliament. The Commission may also inquire intoother matters it considers relevant to theprevention of corrupt, illegal or improper conductin the public sector.

The Specified Matters, which are set out in theFirst Schedule of the Commission on GovernmentAct 1994, provide the initial focus of theCommission’s inquiries. The relevant issues,however, cannot be addressed in a vacuum. TheCommission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This appliesalso to any matters which may become part of theCommission’s inquiries. We have concluded thatit is necessary to address the context in which theSpecified Matters have arisen, the historical,contemporary and topical circumstances andevents which surround them and their relevancefor the future.

The Discussion Papers which the Commission hasprepared and will prepare in respect of theSpecified Matters and the other matters into whichit may inquire are intended to canvass some of theissues which may arise within this broader picture.The papers are designed to encourage debate andwritten submissions upon a wide range of issueswhich might be relevant to the Commission’stasks.


This paper deals with Specified Matter 10.

The task of the Commission is to inquire into thestandards of conduct expected of all publicofficials for the purposes of -

(a) their formulation in codes of conduct; and(b) determining what associated measures should

be taken to facilitate adherence to thosestandards.

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CONTENT



2. SUBMISSION/ARGUMENT – in thissection you can expand on your concernsabout the issues that you are addressing,outlining how you will back this up withfactual material and argument which supportyour views.

3. SUPPORTING MATERIAL – here youpresent any material, item by item, referring tohow each item supports your argument. Thismay take the form of examples of actualevents, copies of documents, or any otherevidence relevant to your submission.


Please send your submission to:

The ChairpersonCommission on Government6th Floor, May Holman Centre32 St George’s TerracePerth WA 6000Fax: (09) 222 0522Phone: (09) 222 0544


ISBN 0 7309 6911 8Copyright Commission on GovernmentNovember 1995

CONTENTS

1. INTRODUCTION

1.1 Definition of Public Official1.2 Roles of Public Officials and the

Standards of Conduct Expected ofThem

1.3 Codes of Conduct

2. THE WESTERN AUSTRALIANCONTEXT

2.1 The Royal Commission2.2 Elected Officials

2.2.1 Members of Parliament2.2.2 Ministers2.2.3 Local Government Elected

Members2.3 Appointed Officials Covered by the

Public Sector Management Act 19942.3.1 Public Sector2.3.2 Government Trading

Enterprises and StatutoryAuthorities

2.3.3 Accountability Agencies2.3.4 Ministerial Staff and Media

Secretaries2.4 Appointed Officials Not Covered by

the Public Sector ManagementAct 19942.4.1 Electorate Staff2.4.2 Officers and Staff of Parliament

and Government House2.4.3 Police2.4.4 Universities2.4.5 Local Government Staff

2.5 Overlap with Other AccountabilityMechanisms


3.1 The Purposes and Benefits of Codes3.2 Different Types of Codes3.3 Issues Dealt with in Codes of Conduct3.4 The Development of Codes3.5 Sanctions for Breach and Procedures

for Dealing with Alleged Breaches3.6 Private Sector Codes of Conduct

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3.7 Implications of Contracting Out3.8 Measures Used to Supplement Codes

REFERENCES

APPENDIX 1

APPENDIX 2

1. INTRODUCTION

Specified Matter 10 requires the Commission onGovernment to inquire into:

The standards of conduct expected of all public officials forthe purposes of:

(a) their formulation in codes of conduct; and(b) determining what associated measures should be taken

to facilitate adherence to those standards.

1.1 Definition of Public Official

For the purposes of this Specified Matter it isnecessary to consider what is meant by the termpublic official and who falls within its scope. TheCriminal Code has a quite restricted definition of apublic official which is not broad enough to coverelected officials. This definition is relied upon inthe Commission on Government Act 1994 and theOfficial Corruption Commission Act 1988 butadditionally includes ministers of the crown andMembers of Parliament. It is difficult to find aconsistent meaning to the term in legislationcurrently in force in Western Australia.

Some commentators have suggested that a broaddefinition of the term public official would includeall those exercising a duty involving public trustand confidence. Those covered in this discussionpaper include:

• Members of Parliament, including ministers ofthe crown;

• the Governor and support staff;

• local government elected members andemployees of councils;

• employees of departments and agenciesresponsible to a minister;

• members of boards and committees ofstatutory authorities which receive publicmoney, and their employees;

• members of government appointedcommittees;

• statutory officials who report directly toparliament and their administrative staff;

• electorate staff;

• officers and staff of parliament;

• police; and

• staff of universities and other educationalfacilities.

1.2 Roles of Public Officials and theStandards of Conduct Expected of Them

The roles and functions of elected officials aredifferent from those of appointed officials. In oursystem of government, elected officials are said tobe ultimately accountable to their electorates, andministers are responsible to parliament for thepolicies and performance of their departments,while appointed public officials are not subject todirect public accountability. In reality, thedividing line is not always so clear. TheWestminster model of accountability is oftenconsidered insufficient to assess appropriatestandards of conduct required of officials, or as abasis for public confidence in the system of publicadministration. Ethical values or rules are said tobe critical in ensuring accountability.

All public officials, regardless of the particularrole they perform, are likely to be confronted withmoral or ethical dilemmas from time to time andmay need assistance in determining which is themost ethical of various courses of action. Dr NoelPreston considered that ‘... nothing is moredangerous to the well-being of the body politicthan a public official who is technically competent

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or strategically astute but ethically illiterate orunfit’ (1994: 1).

Because of the different roles played by publicofficials it is sometimes considered inappropriateto attempt to codify common standards for all. It isalso argued that ethical standards should reflectnot only the different roles but also the degree ofpower and influence wielded by officials. Anotherview is that there are moral or ethical principleswhich should underlie the behaviour of all publicofficials and which can be articulated.

One feature common to all those holding seniorpublic office is their ability to make decisionswhich affect citizens and to control the resourcesof the community. For this reason, the concept ofpublic trust may provide a useful starting point informulating standards of conduct expected of allpublic officials. This notion of public trust mayrequire a higher standard of conduct from publicofficials than from those who hold privatepositions, as it implies that public officials will actin the public interest and not according to theirindividual interests.

1.3 Codes of Conduct

There is often some confusion between the use ofphrases such as codes of conduct, and codes ofethics, or similar terms. What do they mean? Arethere any differences between codes of conductand codes of ethics? Often, the phrases are usedinterchangeably. The following useful definitionshave been formulated by the Public SectorStandards Commission:

• Codes of EthicsValues which guide the membership of agroup, profession or society;

• Codes of ConductSpecific expressions of required behaviourwhich are consistent with the Codes of Ethics(WA, Public Sector Standards Commission,1995: 6).

This discussion paper does not confine itself tothese definitions. This Specified Matter only refersto codes of conduct, yet many codes contain

elements of both codes of conduct and codes ofethics. For this reason, discussion is not confinedto codes of conduct. When the term code is used itapplies to both codes of conduct and codes ofethics.

Both terms are referred to in the Public SectorManagement Act 1994 (PSM Act), which requiresthe Commissioner for Public Sector Standards toproduce a code of ethics for the public sector andto assist individual agencies in developing codesof conduct.

Currently a diverse range of codes exists in theprivate and public sectors. Some are framed verybroadly while others are prescriptive. One reasonfor formulating a written code of conduct ratherthan relying upon custom and practice, is toprovide officials with a reference point againstwhich to assess their own conduct and the conductof others. Obviously, not all ethical problems canbe covered by codes nor can it be expected that thepresence of codes will guarantee ethicalbehaviour. Nevertheless, codes may provideguidance about activities which are permissible,and those which are prohibited may be the basisfor disciplinary action when codes are violated.Codes may be of significant assistance inpreventing corrupt, illegal or improper conduct.


2.1 The Royal Commission

In Part II of its report, the Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) stated that thetrust principle expressed the condition upon whichpower is given to the institutions of governmentand to elected and appointed officials. Thisprinciple states that:

The institutions of government and the officials and agenciesof government exist for the public, to serve the interests ofthe public. (WA Royal Commission, 1992: II 1.2.5)

It went on to say that this principle ‘... informs thestandards of conduct to be expected of our publicofficials ... [and] justifies the imposition ofsafeguards against the misuse and abuse of official

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power and position’ (WA Royal Commission,1992: II 1.2.6).

The WA Royal Commissioners formed the viewthat ‘... some officials who appeared before usseemed to have very little appreciation of thosestandards’ and considered it ‘... necessary that allpublic officials have available to them indocumentary form a statement or code whichclearly states and explains the standards to whichthe community expects them to adhere’ (WARoyal Commission, 1992: II 4.6.1).

In summary, the Royal Commission described ingeneral terms the standards required of publicofficials:

• to act lawfully;

• exercise their offices honestly, impartially,disinterestedly, conscientiously andcompetently and be seen to do so;

• act fairly and with due regard to the rights andinterests of others;

• be scrupulous in use of their position and ofpublic property and information to which theyhave access; and

• be prudent in managing public resources (WARoyal Commission 1992: II 4.6.3).

2.2 Elected Officials

There may be core fundamental principles whichapply to all public officials, but because of thedifferent manner in which these categories ofoffice holders are accountable to the public,elected and appointed officials are treatedseparately in this paper. The category of electedofficials includes members of state parliament andlocal government representatives. Ministerialoffice imposes additional responsibilities and willbe discussed separately in section 2.2.2.

2.2.1 Members of Parliament

No formal code of conduct applies to Members ofParliament in Western Australia. New membersmust swear an oath or affirmation of allegiance.

Guidelines assist members in matters relating totheir entitlements and new members receive someinduction. While in Parliament, members mustcomply with Standing Orders and abide by anyresolutions of the House in which they are amember, or decisions of the relevant PresidingOfficer. There are Standing Orders that attempt to:

• establish acceptable standards of behaviour;

• maintain the privileges and freedom of actionof members; and

• regulate possible conflicts of interest.

The Members of Parliament (Financial Interests)Act 1992 establishes a register of certain interestsof members which is available for publicinspection. The Commission on Government willdiscuss this legislation further when dealing withSpecified Matter 12.

Codes of conduct for parliamentarians inWestminster-derived systems of government arerelatively recent, although Victoria has had onesince 1978 (Members of Parliament (Register ofInterests) Act 1978 (Vic.)).

In developing codes of conduct for electedofficials it may be necessary to clarify the basicduty of a Member of Parliament. Is a duty owed tothe electorate of the member, to Parliament, or tothe wider community?

The codes of conduct developed, contain generalprinciples dealing with such issues as the use ofconfidential information gained from office; theneed to avoid situations where private interest mayconflict with public duty; honesty; and theappropriate use of influence, public property andservices. Some attempt to spell out the primaryduties and responsibilities of members, such as theprimacy of the public interest in the resolution ofconflicts.

A number of committees have examined andreported on the standard of conduct expected ofpublic officials and the usefulness of codifyingthese standards for elected representatives(Appendix 1).

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At present, parliamentary committees inQueensland, New South Wales, Tasmania andSouth Australia are charged with the responsibilityof either developing an appropriate code ofconduct for members (of the respective House) orconsidering whether a code of conduct would beappropriate. A significant aspect of theparliamentary committee in New South Wales isthe presence of three community members on thiscommittee.

In Western Australia, the Beazley Committeeexamined certain aspects of parliamentarybehaviour. It concluded that ‘... in most respectsthere is an adequate code already available in theform of the Standing Orders and practices of bothHouses’ (WA, Parliamentary StandardsCommittee, 1989: 70). Nevertheless, it drafted acode of conduct which essentially comprised theStanding Orders and practices from both Houses,to be used as an educative tool to inform thegeneral public of the type of behaviour membersare expected to adopt.

In the United Kingdom, the House of Commonsestablished the Nolan Committee following aspate of controversies involving politicians,including allegations about certain membersaccepting money for asking parliamentaryquestions. In its first report it examined standardsof conduct of all holders of public office and setout seven general principles of conduct whichwere considered to underpin all areas of publiclife. These principles are:

• selflessness;

• integrity;

• objectivity;

• accountability;

• openness;

• honesty; and

• leadership.

The Committee further recommended that aspecific code of conduct be developed forMembers of Parliament which would build uponthese general principles.

The Committee observed that:

We cannot say conclusively that standards of behaviour inpublic life have declined. We can say that conduct in publiclife is more rigorously scrutinised than it was in the past, thatthe standards which the public demands remain high, andthat the great majority of people in public life meet thosehigh standards. But there are weaknesses in the proceduresfor maintaining and enforcing those standards. As a resultpeople in public life are not always as clear as they should beabout where the boundaries of acceptable conduct lie. Thiswe regard as the principal reason for public disquiet. It callsfor urgent remedial action. (U.K., Committee on Standards inPublic Life, 1995: 3)

The Committee recommended the appointment ofa Parliamentary Commissioner for Standards toprovide advice and guidance to members onmatters of conduct and investigate allegedbreaches of misconduct.

The Commission’s Report No.1 mentioned thatmany submissions expressed dissatisfaction withthe conduct and performance of Members ofParliament, particularly in respect of allegedmisuses of privilege. Accordingly, theCommission recommended that a StandingCommittee on Privilege be established in eachhouse with the task of preparing a uniform code ofconduct for the guidance and governance ofmembers in relation to possible breaches ofparliamentary privilege. Further recommendationselaborated on the desired role and function of thiscommittee.

2.2.2 Ministers

Generally, ministerial codes of conduct tend todeal almost exclusively with conflict of interestissues. The 1990 Western Australian MinisterialCode of Conduct (1990 Code), contained in theCabinet Handbook, deals specifically with thedeclaration of pecuniary interests, theadministration of ministerial expenses, and thegiving, receiving and declaration of gifts. Sincethe enactment of the Members of Parliament(Financial Interests) Act 1992 many of theprovisions of the 1990 Code have been

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superseded. No legal sanctions are attached to abreach of the code. The Premier of the day isresponsible for dealing with breaches of itsprovisions. Possible disciplinary action couldinvolve a private or public reprimand, a change ofportfolio responsibility or demotion to thebackbench.

The general acceptance of codes of conduct forministers, and their more onerous provisions,probably reflects the fact that ministers have a fargreater influence in the allocation of publicresources than other elected representatives.Accordingly, codes have been considered a usefulmeans of prescribing standards for themanagement of ministers’ private interests.

Ministers claim to be bound by cabinetconventions such as collective responsibility. Thisconvention is said to call for the confidentiality ofcabinet deliberations and documentation andministerial responsibility for policy proposals thatare brought to cabinet by ministers. The issue ofcabinet confidentiality was discussed in theCommission’s Report No. 1.

2.2.3 Local Government Elected Members

Mayors and councillors are the electedrepresentatives of a local government authority(LGA) and must be residents, owners or occupiersof rateable properties in the district of themunicipality. Western Australian councillorsoccupy unpaid positions, but they may apply forsome reimbursement of expenses.

Local government decisions have a direct effecton a local community. Decisions, including thoseon such matters as zoning, council expenditureand organisation of traffic, may benefit somepeople and disadvantage others. The privateinterests of councillors should not influencedecisions of council.

Current rules of conduct for councillors are basedon statute law and by-laws. The Local GovernmentAct 1960 does not require LGAs to develop codesof conduct, but it does provide some guidance onissues such as corruption and pecuniary interest(ss.174-174B).

The Local Government Bill 1995 would strengthenthese requirements by providing for a mandatoryFinancial Interests Register and for discretionarydisclosure of direct or indirect benefit, whetherfinancial or otherwise. It would require everyLGA to prepare a code of conduct which must bereviewed within twelve months of each ordinaryelection. The Bill also provides for regulationswhich may prescribe the content of the code. Anycode would only be effective to the extent that it isconsistent with these regulations.

Some LGAs have adopted voluntary codes ofconduct, the majority of which are based on thecode of conduct produced by the WesternAustralian Municipal Association. The issues dealtwith include:

• conflict and disclosure of interest;

• personal benefit;

• conduct of members of staff;

• dealing with council property; and

• corporate obligations (WAMA, 1990).

2.3 Appointed Officials Covered by thePublic Sector Management Act 1994

In September 1994 the Western AustralianGovernment employed 115,900 people. The PSMAct regulates the conduct of the public sector,which includes the majority of appointed publicofficials. This discussion paper draws a distinctionbetween those officials covered by the Act andthose who are not. It has often been difficult toestablish which officials fall within the coverageof the PSM Act, as the definitions given to termssuch as the ‘public sector’ and ‘public serviceofficer’ are quite complex.

Schedule 1 of the PSM Act lists entities which arenot organisations for the purpose of the Act(Appendix 2).

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2.3.1 Public Sector

The PSM Act replaced the Public Service Act1978. It was introduced in response torecommendations by the WA Royal Commissionfor the establishment of a Commissioner forPublic Sector Standards whose jurisdiction wouldextend to all departments and agencies ofgovernment.

The provisions of the Public Service Act 1978 hadapplied to only about one fifth of the public sector.Nevertheless, policies and practices developed bythe Public Service Commission tended to befollowed by other public sector organisations.Directions on standards of behaviour werepromulgated in a number of ways. Rights,Responsibilities and Obligations - A Code ofConduct for Public Servants (the 1988 Code) wasfollowed by supplementary Conflict Of InterestProvisions in 1991 and draft guidelines onConfidentiality and Disclosure of Information in1993. Administrative Instructions were issuedfrom time to time. A detailed draft Code of Ethicsfor the Western Australian Public Sector, whichidentified seven ethical principles, was developedand circulated for comment in May 1994 (WA,Public Service Commission, 1988, 1991, 1993,1994). These principles are respect for the law;honesty; diligence; courtesy; fairness; publicconfidence; and the public interest.

The Public Service Act 1978 was repealed by thePSM Act which gives CEOs employer status, setout general principles of official conduct andcreated the position of Commissioner for PublicSector Standards whose functions include:

• establishing for the public sector, including thepublic service, minimum standards of merit,equity and probity for certain human resourcemanagement activities;

• establishing codes of ethics includingminimum standards of conduct and integrity;

• assisting public sector bodies to develop codesof conduct consistent with the codes of ethics;and

• monitoring compliance with the codes andstandards.

As at the date of this paper, general standards forhuman resource management practices have beenestablished, but they will not come into effect untilthe first quarter of 1996.

The Commission on Government has surveyed allgovernment organisations to find out what codesare currently in place and how they are managed.Although some organisations have developedagency-specific codes, the majority continue torely upon the 1988 Code and its conflict of interestprovisions.

The PSM Act also provides for the appointment ofchief executive officers and members of the seniorexecutive service on five year contracts whichmay have implications for the ethical culture ofagencies.

Another influence on the conduct of publicofficials is the Customer Focus policy announcedby the Government in 1994. This requires eachagency to develop customer charters describingthe services available and the standards of servicethat can be expected by clients.

2.3.2 Government Trading Enterprises andStatutory Authorities

Governments can deliver services throughstatutory authorities and Government TradingEnterprises (GTEs).

Statutory authorities are established under theirown legislation which defines their powers, dutiesand relationship with government. They may begoverned by a board or a commission which inturn reports to the minister. Examples include theDisability Services Commission, the WA Museumand the State Supply Commission.

GTEs, which are a particular form of statutoryauthority, sell their services and can obtain asubstantial proportion of their revenue from suchsales. Examples include the Totalisator AgencyBoard and the Fremantle Port Authority. It issometimes argued that the differing reporting

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• Official Corruption Commission.

The roles of these agencies are outlined in theCommission on Government’s Discussion PaperNo. 6 on Specified Matters 11 & 13.

In addition to the requirements of the PSM Act,the Office of the Director of Public Prosecutions(DPP) and the Auditor General have adopted theirown codes of conduct and ethical values. Thevalues adopted by the DPP include justice andfairness; independence; efficiency and excellence;accountability; support and cooperation; andcompetence and professionalism.

2.3.4 Ministerial Staff and Media Secretaries

Ministerial officers and media secretaries attachedto the Government Media Office work directly toa minister. While these officials are paid from thepublic purse, in many, but not all cases, their workcan be distinguished from that of public servantsby:

• term of government appointment;

• a close working relationship with a minister;and

• the more overtly political nature of their work.

The WA Royal Commission expressed concernsrelating to the role of ministerial officers, and as aresult, special provisions relating to the terms oftheir employment were included in the PSM Act.

Ministerial officers are expected to comply withthe 1988 Code. In addition, the Premier has issuedguidelines relating to requirements in the PSM Actlimiting contact by ministerial staff with agencyemployees. Guidelines have also been circulatedon expenditure on government hospitality,particularly relating to use of corporate creditcards and taxi vouchers.

Media secretaries are normally journalists byprofession. While their conditions of service aresimilar to those of officers employed under thePSM Act, the extent to which they are covered bythe code of ethics of the Australian Journalists

relationships and commercial focus of somestatutory authorities results in a modification ofthe traditional public service culture and ethics.

Some GTEs, such as AlintaGas and WesternPower, have even greater autonomy throughcorporatisation, which enables them to operatealong private sector lines, free from day to dayministerial direction. The Review of Public SectorFinances stated:

The ministers’ role under corporatisation is to set objectivesfor GTEs and monitor their performance to ensure that it isin line with agreed targets. Ministers should avoid becominginvolved in the day-to-day management of GTEs. (WA,Review of Public Sector Finances, 1993: 9)

Some corporatised bodies, although not subject tothe PSM Act, have provisions in their enablinglegislation requiring the preparation and use ofcodes of conduct (s.24, Gas Corporation Act 1994and s.24 Electricity Corporation Act 1994).

2.3.3 Accountability Agencies

Accountability agencies are appointed by theGovernor in accordance with the provisions oflegislation and contribute to making theadministrative system of government moreaccountable to the people. They include the:

• Auditor General;

• Commissioner for Equal Opportunity;

• Commissioner for Public Sector Standards;

• Director of Equal Opportunity in PublicEmployment;

• Director of Public Prosecutions;

• Electoral Commissioner and Deputy ElectoralCommissioner ;

• Information Commissioner;

• Parliamentary Commissioner and DeputyParliamentary Commissioner (Ombudsman);and

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Association, as distinct from public sector codes,has not been formally clarified. The organisation,role and function of media secretaries of thegovernment and its agencies, and of theGovernment Media Office is to be consideredfurther in Specified Matter 4.

2.4 Appointed Officials Not Covered by thePublic Sector Management Act 1994

2.4.1 Electorate Staff

Each Member of Parliament is entitled to employone electorate officer. There is an unwritten rulethat the officer must not be a family member. It ispolicy that electorate offices not be used toconduct party political campaigns. Electorateofficers are considered to be outside themainstream public sector and are exempt from theprovisions of the PSM Act. There is no formalcode governing their conduct.

2.4.2 Officers and Staff of Parliament andGovernment House

Parliament House staff include the Clerks andOfficers of the two Houses and staff from theParliamentary Library and the Joint HouseCommittee. The staff of Government Houseinclude the Governor’s personal and officialsecretaries, administrative support, gardeners andhousekeeping staff.

The role of the Clerks of the Houses and their staffhas been described as being the ‘... hinges aroundwhich the actual business of Parliament revolves’(O’Keefe, 1990: 51). Mr O’Keefe added that theClerks are required to adhere to standardsincluding ‘... profound political impartiality (butnot neutrality towards the ideals and principles ofthe institution ...)’ (O’Keefe 1990: 55).

There are no written codes of conduct forparliamentary staff or for the staff of GovernmentHouse.

2.4.3 Police

Sworn officers of the Police Service do not comeunder the jurisdiction of the PSM Act. The Police

Act 1892 empowers the Commissioner of Police tomake regulations for discipline.

All officers receive a copy of the Code of Ethicsand Statement of Values, which includes tenaspirational ethical statements such as:

I will adhere to the principles of honesty and integrity.I will not misuse my authority or position for personal gain.(WA, Police Service, 1995: 4)

and ten statements of values, one of which is:

The Western Australia Police Force believes in treating thecommunity fairly and equitably. (WA, Police Service,1995: 9)

These values have been incorporated into theService’s Corporate Vision Statement, whichoutlines a move to better customer focus through aCustomer Service Charter (WA, Police Service,1995). The 1988 Public Service Code is also usedwithin the Police Service.

Breaches of Police Force Regulations are dealtwith internally by officers serving as TribunalOfficers. Section 23(4) of the Police Act 1892provides for penalties including reprimand, fine,demotion, suspension or dismissal.

2.4.4 Universities

All public universities in this State are establishedby Acts of the Western Australian Parliament.They are publicly funded institutions, butacademic staff in particular, are not generallyregarded as public officials in the same sense aspublic servants. This derives from the tradition ofintellectual freedom which characterisesuniversities in most western countries.

The universities are nonetheless subject toaccountability mechanisms, including theFinancial Administration and Audit Act 1985 andthe Freedom of Information Act 1992. In addition,they have separately established policies andprocedures in relation to conduct and ethicalissues including:

• close personal relationships between membersof a university community;

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• ethical research;

• consultancies;

• student assessment; and

• equal opportunity, affirmative action and otherhuman resource management issues.

In response to requests for information, EdithCowan University, Murdoch University and theUniversity of Western Australia advised that theydo not have consolidated codes of ethics orconduct. Curtin University of Technology hasadopted a set of Guiding Ethical Principles.

2.4.5 Local Government Staff

Professional and technical local government staffhave codes of ethics set by their respectiveprofessional associations, including the code ofethics produced by the Institute of MunicipalManagement (IMM). The IMM has recentlyprepared a new draft code, the major principles ofwhich include:

• the public interest;

• honesty, integrity and propriety;

• competence and duty of care; and

• confidentiality and respect for privacy (IMM,1995).

2.5 Overlap with Other AccountabilityMechanisms

In Western Australia various means exist bywhich the law may deal with conduct that departsfrom the standard of probity expected of a publicofficial.

Numerous sections of the Criminal Code deal withabuse-of-office offences, although there are doubtsas to whether elected officials are covered by allsuch sections. Other sections specifically refer toMembers of Parliament. Sections 60 and 61 forexample, deal with bribery, or potential bribery, ofa Member of Parliament in respect of matters in

the House of Parliament or any parliamentarycommittee.

The Official Corruption Commission hasjurisdiction to receive complaints about officialcorruption or other criminal conduct described inits Act. It does not have jurisdiction over improperconduct in public office. Its definition of publicofficial specifically includes a minister of thecrown and Members of Parliament. Section 7Fimposes a duty upon certain prescribed publicofficials to notify the Commission of possiblecorrupt or criminal conduct. These issues will bedealt with in the Commission on Government’sReport No. 2.

Other relevant legislation includes :

• Equal Opportunity Act 1984;

• Financial Administration and Audit Act 1985;

• Freedom of Information Act 1992;

• Industrial Relations Act 1979;

• Members of Parliament (Financial Interests)Act 1992;

• Parliamentary Commissioner Act 1971;

• Parliamentary Privileges Act 1891;

• Public Sector Management Act 1994; and

• Salaries and Allowances Act 1975.


3.1 The Purposes and Benefits of Codes

Advocates of codes of ethics and codes of conductargue that their introduction can effectivelypromote the following broad objectives:

• increase public confidence in the ethicalbehaviour of public officials;

• alert officials to the ethical aspects of publicsector decision making;

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• legitimise sanctions for unethical behaviour;

• decrease unethical practices by discouragingand punishing them; and

• reduce uncertainty on ethical issues whichmay occur when standards are fragmentedbetween a variety of sources includingstatutes, regulations, administrative manualsand conventions.

On a practical level, it is asserted that the benefitsthat codes can produce include:

• acting as a focal point for consultationsbetween colleagues and superiors aboutdifficult ethical issues that arise in the courseof business;

• being used as an effective starting point tolaunch a campaign against unethicalbehaviour;

• providing ready access, for both publicofficials and the public, to standards that canbe used to judge and evaluate officialbehaviour; and

• providing an opportunity for employees to beinvolved in setting and owning standards andvalues.

In particular, codes can provide a benchmarkagainst which behaviour can be measured toassess whether it is improper.

On the other hand, there are criticisms, many ofwhich relate to the particular forms that codestake. The following arguments about theirlimitations may apply to codes more generally:

• codes are ineffective in eliminating systemiccorruption, that is where organisationalpractices and culture are in conflict withprofessed codes;

• an ethical culture, rather than a code of ethics,is the basis of ethical organisational behaviour;

• the size and complexity of the public sectormakes it difficult to draft a set of codes thatwould be applicable to all agencies andsituations;

• certain ethical issues are not amenable tobeing managed by rules or codes; and

• codes are difficult to enforce.

Important Issues

• Would codes be effective in promotingethical behaviour?

• Would codes be effective in preventingor eliminating corrupt or improperconduct?

3.2 Different Types of Codes

A difficult aspect of drafting a code of conduct isdeciding on the appropriate level of prescription.Should it provide guidance on every possible issueor set out general principles to assist officials inreaching their own decisions on appropriatebehaviour? Should a code of conduct set outoptimal ethical standards or prescribe minimumstandards which must not be transgressed? How isa balance struck between a code which is so vagueand imprecise that it amounts to nothing morethan pious platitudes, and one that attempts tocover every possible contingency, andconsequently lacks flexibility?

The unique requirements of each organisationcould be reflected in their codes of conduct.Similarly, some issues may be more relevant tocertain office holders because of their particularrole and the power their position confers. Forexample, it is frequently argued that, as ministershave greater power to influence governmentpolicy and decision making than backbenchers,the rules governing the disclosure of pecuniaryand other interests should be more prescriptive forthem. Detailed provisions relating to theacceptance of gifts may be more appropriate in acode of conduct for those public officials who are

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in a position where they are likely to receive gifts.For these reasons it is said to be difficult toattempt to set out common standards applicablefor all categories of public officials and therefore,more specific agency-based codes of conduct maybe more beneficial.

In developing an effective code of conduct, it maybe necessary to consider the:

• relationship between a code of conduct andother legislative requirements;

• linkage of codes of conduct with anydisciplinary procedures; and

• the need to provide examples to help clarifygeneral principles.

The Queensland Public Sector Ethics Act 1994 isan example of a legislatively backed model, whichhas an aspirational rather than a disciplinary base.This Act sets out five general principles to formthe basis of public administration in theQueensland public sector. It envisages thatagencies will develop their own codes of conductwithin a two year period, using the generalprinciples as a framework. These principles are:

• respect for the law and system of government;

• respect for persons;

• integrity;

• diligence; and

• economy and efficiency.

The PSM Act sets out some broad generalprinciples relating to public administration andmanagement, human resource management andofficial conduct. The Act provides for thedevelopment of a code of ethics that would applyto the whole of the public sector, which is to becomplemented by agency-specific codes ofconduct. It is anticipated that the codes of ethicswill comprise a brief document stating high levelvalues similar to those in the Public Sector EthicsAct 1994 (Qld). The agency-specific codes of

conduct, while supporting these stated ethicalprinciples, will be more detailed and will addressissues which relate to the particular organisation.

Important Issues

• How detailed should a code of conductbe?

• Is it useful to include examples ofinappropriate behaviour in a code, toassist officials in understanding thepractical application of generalprinciples?

• Should codes of conduct refer to relevantActs, regulations and instructions assupplements to the codes?

• Would it be desirable to formulate acode of conduct comprising coreprinciples common to all public officialsor more specific codes to meet theindividual needs of a particularorganisation?

3.3 Issues Dealt with in Codes of Conduct

The issues covered in codes of conduct arediverse, with no uniformity in the obligationsimposed. Nevertheless, the following matters tendto be found in most public sector codes of conductand are included in the 1988 Public Service Code:

• conflict of interest (financial or other privateinterests, acceptance of gifts and benefits,outside employment);

• confidentiality and managing officialinformation;

• restrictions on making public comment;

• political partisanship; and

• using official facilities.

Codes of conduct developed for professionalbodies, while often including such matters, also

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address issues which are relevant to professionalpractice, such as competence and due care,referrals, keeping the client informed, and theimage of the profession.

Agency codes may also address issues related totheir operations. For example, the code of conductadopted by the Office of Racing and Gamingaddresses the standards required of staff attendingcasinos or other gaming functions while off duty.Similarly, the Perth Theatre Trust’s draft code ofconduct is detailed in its coverage of theacceptance of gifts and benefits by staff.

A striking feature of various model codes ofconduct devised for elected officials is theirtendency to dwell on conflict of interest issues. InWestern Australia, as in many other Australianjurisdictions, legislation has been introducedwhich requires members of parliament to disclosecertain pecuniary and non pecuniary interests.(Members of Parliament (Financial Interests) Act1992). It also attempts to regulate conflicts ofinterest. The Local Government Bill 1995 has asimilar disclosure regime. The preoccupation ofcodes of conduct with conflict of interest issueshas often been criticised, as it is considered thatsuch codes should also address the equallycomplex issues involving conflict of loyalties(Kernaghan, 1980: 213).

Various committees have looked, or are currentlylooking, at the issue of codes of conduct forelected officials. The Draft Framework of EthicalPrinciples for Members and Senators of theCommonwealth Parliament proposes the followingprinciples:

• loyalty to the nation and regard for its laws;

• diligence and economy;

• respect for the dignity and privacy of others;

• integrity;

• primacy of the public interest;

• proper exercise of influence;

• personal conduct; and

• additional responsibilities of ParliamentaryOffice Holders (Commonwealth of Australia,Parliamentary Working Group, 1995).

Important Issues

• What issues should be dealt with incodes of conduct?

• Are there core ethical principles whichapply to all public officials?

• Should codes of conduct reflect thedifferent roles of public officials and thedifferent manner in which they areaccountable to the public?

• Should separate codes of conduct bedeveloped for ministers and otherMembers of Parliament?

• What standards are the public entitled toexpect of public officials?

• Should any code of conduct focus on thenotion of public office being seen as aposition of trust?

3.4 The Development of Codes

As part of its review of codes of conduct forpublic officials in Queensland, the Electoral andAdministrative Review Commission (EARC)conducted an Ethics Survey. It found:

(a) that 40% of respondents were unaware of theQueensland Code;

(b) 73% believed that their colleagues ‘rarely or never’ usedthe Queensland Code; and

(c) 85% indicated that they would be guided more by theirown judgement than by a written code of conduct.(EARC, 1992: 57, 58)

In its report EARC (1992) noted that theQueensland Code was introduced in 1988,apparently without public sector unions being

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consulted in its development. A formal program ofstaff training or familiarisation did not accompanythe Code’s introduction. It appeared also, thatsome chief executive officers were not complyingwith their legislative obligations to draw officers’attention to the Code and provide access to theCode.

In Western Australia, a survey of senior executiveservice personnel in 1991 found that:

Over 70% of WA Senior Executive Service respondentsbelieved there to be a low awareness of the existing Code ofConduct among public servants and a much larger percentagebelieved that the Code was either neutral or (highly)ineffective. (Peachment, 1994: 88)

The literature on ethical codes suggests that theyare more likely to be successful if employees areinvolved in their development and revisionbecause this encourages a sense of ownership andcommitment to their principles. Indeed, it is saidthat the process of developing or revising a code isat least as important as the code itself, in that itprovides an opportunity to alert public officials tothe ethical aspects of their work. Possible ways ofinvolving employees in the process include theestablishment of staff ethics committees, the useof staff surveys, discussion groups and workshops.

Commentators also stress the role of leadership inthe development and promotion of ethical codes.Thus, an emphasis on employee participationwould not preclude a chief executive or managerfrom taking an active part. The previouslymentioned Queensland and Western Australianexperiences suggest nonetheless, that codes whichare merely imposed from above are limited intheir effectiveness.

Another suggestion is to include interested partiesin formulating codes. By opening up the processto outside participation, a community’sexpectations of its public officials can beincorporated into a code. Furthermore, it is arguedthat the associated publicity helps to promotepublic trust in government. A system where publicinput is invited through newspaper advertisementsis one option.

Important Issues

• To what extent should public officials beinvolved in developing their own ethicalcodes?

• Should there be consultation withinterested parties in the development ofcodes?

• If so, should there be a formalrequirement to invite public submissionsin the development of a code?

• What other mechanisms could be used toencourage relevant communityparticipation in the development ofpublic sector codes?

3.5 Sanctions for Breach and Procedures forDealing with Alleged Breaches

Given that: ‘Codes of conduct are first designed toinfluence attitudes rather than prescribebehaviour’ (Findlay and Stewart, 1991: 10) thereis some controversy over whether sanctions areappropriate for dealing with all breaches of codesof conduct. The issue is linked to the question ofthe appropriate role of codes of conduct andwhether they should be aimed at setting highstandards which are to be aspired to or at imposingminimum standards which are not to betransgressed. In addition, the terms in which acode is couched may hinder a prosecution. Forthese reasons, it may be thought more appropriateto resort to counselling or training for other thanserious breaches. Nevertheless, a code of conductwhich is solely reliant upon voluntary compliancecould be ineffectual. For this reason, it is oftenargued that codes should be supported by explicitsanctions, either mandatory or discretionary, andadequate enforcement procedures for dealing withbreaches.

A significant feature of Part 5 of the PSM Act,which deals with disciplinary matters, is thelimited range of public officials who fall within itsscope. It only covers public service officers andministerial officers, with provision for others to be

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included by way of prescription (s.76). Thiscontrasts with the sections of the Act dealing withpublic sector standards, general principles, codesof ethics and codes of conduct, which apply to thepublic sector. Thus, many public sectororganisations, while required to have a code ofconduct in place, may not be able to resort to thedisciplinary provisions of the Act in the event of abreach.

Section 80 sets out a list of matters whichconstitute a breach of discipline. It provides:

80. An employee who:

(a) disobeys or disregards a lawful order;

(b) contravenes-

(i) any provision of this Act applicable to thatemployee; or

(ii) any public sector standard or code of ethics;

(c) commits an act of misconduct; or

(d) is negligent or careless in the performance of his or herfunctions;

commits a breach of discipline.

Section 80(b)(ii) does not specifically refer to thecontravention of a breach of a code of conduct.Nevertheless, a breach of a code of conduct mayfall within one of the other subsections andtherefore constitute a breach of discipline.

Other provisions vest the employing authoritywith discretionary power to call an investigation ifa breach of discipline is suspected. If a minorbreach of discipline is found to have occurred, thepenalties include a reprimand, a fine or both. If theconduct is found to constitute a serious breach ofdiscipline a charge must be made and, if proved,penalties range from a reprimand to dismissal.

As mentioned, the disciplinary provisions of thePSM Act do not cover the whole of the publicsector. Nevertheless, those public sectoremployees not covered by the PSM Act, may besubject to disciplinary provisions in otherlegislation. It is rare for disciplinary provisions to

cover ex-employees and if the person underinvestigation resigns prior to the conclusion of theproceedings, this may mean that the investigatorcannot make a finding.

The Commissioner for Public Sector Standards(the Commissioner) has indicated that allegedbreaches are to be dealt with, in the first instance,by the organisation. This approach is reinforced bys.29(1)(l) of the Act which states that chiefexecutive officers are responsible ‘subject to Part7 and the Industrial Relations Act 1979, to resolveor redress the grievances of employees in thatdepartment or organisation’. The Commissionerhas a monitoring and reporting role in relation tobreaches of standards and codes and can initiate aninvestigation into the ‘activities of any publicsector body’ (s.24).

The situation in respect of sanctions for breach ofcodes of conduct for elected officials issignificantly different. Such codes are rarelylinked to formal disciplinary mechanisms, withself regulation being seen as sufficient to ensurethat the privileges and powers of parliaments arenot infringed. It is argued that the ultimatesanction for unethical conduct by elected officialsis the ballot box. The Bowen Committee reachedthis decision, but recommended the establishmentof a Standing Ethics Committee to investigatecomplaints from the public of alleged conflict ofinterest breaches. It further recommended that anindependent Public Integrity Commission beestablished to deal with issues where there is amajor breach of the Code of Conduct whichbrought into disrepute the integrity of public life(Bowen Committee, 1979: 108).

Victoria is the only Australian jurisdiction with acode for Members of Parliament. The legislationprovides that any wilful contravention of therequirements of the Act is a contempt ofparliament and may be punished by the house assuch. In addition, the house may fine a member(Members of Parliament (Register of Interest) Act1978 (Vic.)).

Parliamentary committees are often considered themost appropriate means of investigating allegedbreaches of approved parliamentary codes of

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conduct. The Queensland Parliament isestablishing a Members’ Ethics and ParliamentaryPrivileges Committee, pursuant to theParliamentary Committee Act 1995 (Qld), toformulate a code of conduct and to considerprocedures for its implementation and sanctionsfor breach. The Committee will have exclusivejurisdiction to consider alleged misconduct exceptwhere it is alleged that a criminal offence has beencommitted.

The Legislative Council of New South Wales’Standing Committee on Parliamentary Privilegeand Ethics does not have investigatory powers inrespect of alleged breaches of any, yet to beapproved, code of conduct, but can provide adviceon ethical issues. This committee will includethree community members as well as eightparliamentary members. The NSW IndependentCommission against Corruption (ICAC) caninvestigate substantial breaches of a prescribedministerial or parliamentary code of conduct, ifthe offensive conduct also falls within thedefinition of corrupt conduct set out in the ICACAct (s.3 Independent Commission AgainstCorruption (Amendment) Act 1994 (NSW)).

The Nolan Committee Report recommended that aParliamentary Commissioner for Standards shouldbe responsible for referring alleged breaches of acode to a sub-committee of the U.K. House ofCommons Committee of Privileges, which wouldthen report to the full Privileges Committee. Itcontemplated however, that severe penalties, suchas suspension or fine would need to go back to theHouse for approval (U.K., Committee onStandards in Public Life, 1995).

The draft Commonwealth Framework of EthicalPrinciples for Members and Senators (1995)recommends that breaches of the ethical principlesare to be dealt with as determined by theparliament.

Important Issues

• What, if any, sanctions should apply tothe breach of a code of conduct?

• Should obedience to a code of conductbe entirely voluntary or should it belinked to a disciplinary sanction such asmisconduct?

• Would it be desirable to amend thePublic Sector Management Act 1994 tospecifically provide that a breach of acode of conduct constitutes adisciplinary offence?

• Should the disciplinary provisions of thePublic Sector Management Act 1994apply to all public sector organisations?

• Should sanctions for a breach of a codeof conduct be discretionary ormandatory?

• What form of penalty is appropriate forbreaches of a code of conduct?

• What is the most appropriate mechanismfor enforcing codes of conduct forelected officials?

• Is there a need for a parliamentary ethicscommittee responsible for investigatingalleged breaches of a code of conduct?

• Should disciplinary provisionsspecifically cover ex-employees?

3.6 Private Sector Codes of Conduct

Codes of conduct are frequently relied upon toestablish ethical standards of conduct forcorporations, partnerships and industryassociations, although there is no legalrequirement for their establishment in the privatesector. Listed companies are required to provide tothe Australian Stock Exchange details of theircorporate governance practices for reportingperiods ending on or after 30 June 1996, and astatement of the company’s policy on the

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establishment and maintenance of appropriateethical standards is recommended (Listing Rule3C(3)(j) Australian Stock Exchange Listing Rules1994) (Cwlth).

Codes within the corporate sphere are as diverseas those in the public sector. Penalties for breachescan vary from counselling to dismissal. A recentcontentious example was the dismissal of a seniorexecutive by Coles Myer Limited for ‘breaches ofthe company’s Code of Conduct, including thedisclosure of confidential company information’(Coles Myer Ltd, 1995).

Professional associations have codes of ethics,which their members working in the public sector,must abide by. This raises the issue of dividedloyalties if professional standards conflict withpublic sector standards.

Important Issues

• What is the appropriate standard ofconduct expected of professional personsemployed by government?

• Should public sector codes address thepossible conflicts of duty with otherprofessional codes?

• Should different standards apply topublic and private sector employees?

3.7 Implications of Contracting Out

There is an increasing trend towards contractingpublic services to the private sector. The publicsector is also required to tender against the privatesector for the provision of services. This trend, inresponse to global competition and the principlesof the Hilmer Committee (1993) reforms, iscontributing to a fundamental shift in the way thegovernment operates and the ethos of the publicsector. In Western Australia, the McCarrey Reportidentified a wide range of government servicesthat could be contracted out and stronglysupported the notion of competitive tendering(WA, Review of Public Sector Finances, 1993).

Important Issues

• What ethical concerns are posed by thetrend towards a more commercialapproach to public sector management?

• Do the commercial considerationsimposed by competitive tendering andcontracting have implications fortraditional public service values?

• How can conflicts between commercialand public interest motives bereconciled?

• Should private sector parties who acceptgovernment contracts be obliged, in theperformance of that contract, to abide byany relevant public sector code ofconduct?

• What ethical problems are raised whenpublic servants are provided with theoption to take part in management buyouts of public services?

3.8 Measures Used to Supplement Codes

The perceived limitations of codes (outlined insection 3.1) have led commentators to advocate arange of other measures to promote adherence tostandards.

‘Propriety and ethical behaviour are difficult toencapsulate in legal and structural terms’(PCEAR, 1993: 77). Ethical dilemmas may arisewhich are difficult to codify. Whether the publicinterest is the same thing as the interest of thegovernment of the day, is an ethical issue thatarose during the course of the WA RoyalCommission. Another issue might be the questionof whether it is appropriate to bend the rules toassist a particularly needy or deserving member ofthe public.

It is asserted that continuing education andtraining of public officials have an important roleto play in facilitating ethical decision making inthese situations. The forms this can take range

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from modules in university public administrationcourses, to workshops, discussion groups andshort courses. Indeed, the QueenslandParliamentary Committee for Electoral andAdministrative Review recommended that inimplementing EARC’s Public Sector Ethics Actand Codes, education and training should beaccorded the highest priority (PCEAR, 1993: 77).

Kernaghan (1993) advocates other measures inaddition to education and training. They include:

• the importance of senior management andpolitical superiors as role models and the needfor them to demonstrate a clear and continuingcommitment to the values expressed in a code;

• inducting new employees to an organisation’svalues and rules. Some organisations requireemployees to sign a code of conduct as acondition of employment;

• more public participation in governmentdecision making, eg, advisory boards andmeasures to ensure that participation is basedon adequate information; and

• encouraging increased participation indecision making by public servantsthemselves, eg, through decentralisingdecision making authority, which can helpfoster greater sensitivity to ethical issues.

Important Issues

• Can education and training assist inimproving the ethical standards of publicofficials?

• Should public sector agencies berequired to implement a range ofassociated measures to facilitateadherence to ethical codes?

• If so, what associated measures shouldbe taken?

• What measures could be taken topromote ethical standards in smalloffices or agencies with less humanresource management facilities, eg,electorate and ministerial offices,statutory authorities?

REFERENCES

Australian Bureau of Statistics (ABS) (1995)Employed Wage and Salary Earners: Australia:September Quarter 1994 Canberra

Coles Myer Ltd (1995) Breach of Code ofConduct Prompts Termination News Release, 4September 1995

Commonwealth of Australia, Committee ofInquiry Concerning Public Duty and PrivateInterest (Bowen Committee) (1979) Public Dutyand Private Interest: Report of the Committee ofInquiry Established by the Prime Minister on 15February 1978 Canberra: AGPS

Commonwealth of Australia, ParliamentaryWorking Group (Cwlth of Australia,Parliamentary Working Group) (1995) AFramework of Ethical Principles for Members andSenators- Draft Canberra

Findlay, Mark and Andrew Stewart, (1991)‘Implementing Corruption Prevention StrategiesThrough Codes of Conduct’ Occasional Paper(University of Sydney Institute of Criminology)No. 5: 1-22

Institute of Municipal Management (IMM) (1995)Draft Code of Ethics Melbourne

Kernaghan, Kenneth (1980) ‘Codes of Ethics andPublic Administration: Progress, Problems andProspects’ Public Administration 59: 207-223

Kernaghan, Kenneth (1993) ‘Promoting PublicService Ethics: The Codification Option’ inRichard Chapman (editor) Ethics in PublicService Edinburgh: Edinburgh University Press

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National Competition Policy Review Committee(the Hilmer Committee) (1993) Report Canberra:AGPS

O’Keefe, P. A. (1990) ‘Clerks and Members ofParliament: A Personal View of the Relationshipin Australia’ Table 58: 51-63

Peachment, Alan (1994) ‘WA Inc: Failure of thesystem or crime of the employee?’ in MarkBrogan and Harry Phillips (editors) Past asPrologue: The Royal Commission intoCommercial Activities of Government and OtherMatters: Proceedings from a conference on thePart II Report of the Royal Commission and thereform of government in Western Australia Perth:Edith Cowan University

Preston, Noel (editor) (1994) Ethics for the PublicSector: Education and Training Leichhardt:Federation Press

Queensland, Electoral and Administrative ReviewCommission (EARC) (1992) Report on theReview of Codes of Conduct for Public OfficialsBrisbane

Queensland, Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1993) Codes of Conduct for Public OfficialsBrisbane

United Kingdom, Committee on Standards inPublic Life (Nolan Committee) (1995) ‘Standardsin Public Life’ Volume 1: Report London:HMSO

Western Australia, Commission on Government(1995) Discussion Paper No. 6 Perth

Western Australia, Commission on Government(1995) Report No.1 Perth

Western Australia, Independent Commission toReview Public Sector Finances (WA, Review ofPublic Sector Finances) (1993) Agenda forReform (Volume 2) Perth

Western Australia, Ministry of Premier andCabinet (1994) Cabinet Handbook Perth

Western Australia, Parliamentary StandardsCommittee (1989) (Beazley Committee) Reportof the Parliamentary Standards Committee Perth

Western Australia, Police Service (WA, PoliceService) (1995) Purpose and Direction - BetterPolicing Services Perth

Western Australia, Police Service (WA, PoliceService) (1995) Police Force of WesternAustralia - Code of Ethics and Statement of ValuesPerth

Western Australia, Public Sector StandardsCommission (WA, Public Sector StandardsCommission) (1995) Draft Public SectorStandards Perth

Western Australia, Public Service Commission, F.J. Campbell (WA, Public Service Commission)(1988) Rights, Responsibilities and Obligations -A Code of Conduct for Public Servants Perth:Government Printer

Western Australia, Public Service Commission,Michael Wood (WA, Public Service Commission)(1991) Circular to Chief Executive Officers No. 9of 1991: Code of Conduct - Conflict of InterestProvisions Perth

Western Australia, Public Service Commission,Michael Wood, (WA, Public ServiceCommission) (1993) Circular to Chief ExecutiveOfficers No. 14 of 1993: Confidentiality andDisclosure of Information Perth

Western Australia, Public Service Commission(WA, Public Service Commission) (1994) Codeof Ethics for the Western Australian PublicSector - Draft Guidelines Perth

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportPart I (Volume 1-6); Part II, Perth

Western Australian Municipal Association(WAMA) (1990) Voluntary Code of ConductPerth

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LEGISLATION

Australian Stock Exchange Listing Rules 1994(Cwlth)

Commission on Government Act 1994

Criminal Code

Electricity Corporation Act 1994

Equal Opportunity Act 1984



Gas Corporation Act 1994

Independent Commission Against Corruption(Amendment) Act 1994 (NSW)

Industrial Relations Act 1979


Local Government Bill 1995

Members of Parliament (Financial Interests) Act1992

Members of Parliament (Register of Interests) Act1978 (Vic.)


Parliamentary Commissioner Act 1971

Parliamentary Committee Act 1995 (Qld)

Parliamentary Privileges Act 1891

Police Act 1892


Public Service Act 1978

Public Sector Ethics Act 1994 (Qld)

Salaries and Allowances Act 1975

APPENDIX 1

Committees Which have Reported onStandards of Conduct Expected of PublicOfficials

Commonwealth of Australia, Committee ofInquiry Concerning Public Duty & Private Interest(1979) Public Duty and Private Interest: Reportof the Committee of Inquiry Established by thePrime Minister on 15 February 1978 Canberra:AGPS (Bowen Committee)

Western Australia, Parliamentary StandardsCommittee (1989) Report of the ParliamentaryStandards Committee Perth (Beazley Committee)

Queensland, Electoral and Administrative ReviewCommission (1992) Report on the Review ofCodes of Conduct for Public Officials Brisbane(EARC Report)

New South Wales, Parliament of New SouthWales Committee on Independent CommitteeAgainst Corruption (1994) Discussion Paper onPecuniary Interest Provisions for Members ofParliament and Senior Executives and a Code ofEthics for Members of Parliament Sydney

United Kingdom, Committee on Standards inPublic Life (1995) Standards in Public Life(Volume 1) London: HMSO (the NolanCommittee)

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APPENDIX 2


SCHEDULE 1

ENTITIES WHICH ARE NOT ORGANISATIONS

Column 1 Column 2Item Entity

1 The Governor’s Establishment referred to in the Governor’s Establishment Act 1992

2 A department of the staff of Parliament referred to in the Parliamentary and ElectorateStaff (Employment) Act 1992

3 The electorate office of a member of Parliament

4 Any court or tribunal established or continued under a written law and any judge orofficer exercising a judicial function as a member of that court or tribunal

5 The Police Force within the meaning of the Police Act 1892

6 Curtin University of Technology established under the Curtin University of TechnologyAct 1966

7 Edith Cowan University established under the Edith Cowan University Act 1984

8 Murdoch University established under the Murdoch University Act 1973

9 The University of Notre Dame established under the University of Notre Dame AustraliaAct 1989

10 The University of Western Australia established under the University of WesternAustralia Act 1911

11 Gold Corporation and Goldcorp Australia established under the Gold Corporation Act1987 and the Mint within the meaning of that Act

12 R & I Holdings within the meaning of the R & I Bank Act 1990

13 The R & I Bank of Western Australia Ltd within the meaning of the R & I Bank Act1990

14 SGIO Insurance Limited established under the SGIO Privatisation Act 1992

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15 Any municipality or regional council established under the Local Government Act 1960

16 Gas Corporation established by the Gas Corporation Act 1994

17 Electricity Corporation established by the Electricity Corporation Act 1994

18 Western Australian Treasury Corporation established by the Western AustralianTreasury Corporation Act 1986

[Schedule 1 amended by No. 89 of 1994 s.109and in Gazette 16 September 1994 p.4803.]

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a view to preventing corrupt, illegal or improperconduct in the public sector.

This paper identifies some of the issues which arerelevant to the Commission’s task and providesinformation and background on those issues. Theissues identified and information provided are notintended to be an exhaustive list and submissionsmay address any other relevant issues.


SUBMISSIONS




FORMAT






OR

PREFACE





This paper deals with Specified Matter 7concerning the best means to monitor, control andscrutinise the activities of State-owned companies,trading enterprises, partnerships and statutoryauthorities.

The initial task of the Commission is to examinethe necessity and framework for legislation togovern non-departmental government bodies with

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are submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a. (This is especially important for lengthysubmissions.)

CONTENT






Please send your submission to:The ChairpersonCommission on Government6th Floor, May Holman Centre32 St George’s TerracePerth WA 6000Fax: (09) 222 0522Phone: (09) 222 0544



CONTENTS

1. INTRODUCTION

1.1 Specified Matter 71.2 Types of Government Agencies1.3 Public Sector Reform


2.1 Accountability Framework2.2 Legislative Framework2.3 Commission on Accountability (Burt

Commission)2.4 Royal Commission into Commercial

Activities of Government and OtherMatters (WA Royal Commission)

2.5 Government Policy


3.1 The Changing Role of the PublicSector

3.2 The Governance, Monitoring, Controland Parliamentary Scrutiny ofNon-Departmental Public Bodies3.2.1 The Creation and Establishment

of Non-Departmental PublicBodies

3.2.2 Application of AccountabilityMeasures

3.2.3 Boards of Management3.2.4 The Role of Ministers

3.3 The Governance, Monitoring, Controland Parliamentary Scrutiny of theCommercial Activities ofNon-Departmental Public Bodies3.3.1 Commercialisation,

Corporatisation andPrivatisation

3.3.2 Balancing Autonomy andAccountability3.3.2.1 Corporate Planning3.3.2.2 Reporting

Requirements3.3.2.3 Audit Requirements3.3.2.4 Parliamentary Scrutiny

and PublicAccountability

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3.3.3 Balancing Public Interest andProfit Maximisation

3.3.4 Community Service Obligations3.3.5 Competitive Neutrality -

Financial and RegulatoryArrangements

3.3.6 Performance Monitoring

4. SUMMARY

REFERENCES

1. INTRODUCTION

1.1 Specified Matter 7

Specified Matter 7 requires the Commission onGovernment to inquire into:

The necessity and framework for legislation governingmonitoring, control and Parliamentary scrutiny ofState-owned companies, trading enterprises, partnerships andstatutory authorities.

1.2 Types of Government Agencies

The two forms of agency used to deliver serviceson behalf of the government are departments andstatutory authorities. These two types of agencieshave significantly different natures. In accordancewith the Public Sector Management Act 1994,departments can be created, modified, combinedor abolished without legislation being passed bythe Parliament. Departments essentially exist tosupport a minister, implement governmentpolicies and deliver services. There is generally aclose working relationship between the chiefexecutive officer of a department and theresponsible Minister, with the chief executiveofficer reporting directly to the Minister.Departments usually have minimal financialautonomy.

A statutory authority’s legislation prescribes theconstitution, powers and duties of the authority,and the authority’s relationships with the Stategovernment. Statutory authorities can only bereconstituted or abolished following legislative

amendments to their governing legislation. Thechief executive officers of statutory authoritiesgenerally report to a board of directors, do nothave a direct relationship with ministers, andgenerally are not subject to day-to-day directionfrom the minister. Therefore, statutory authoritiesare more autonomous in their day-to-dayoperations than departments.

For over a century governments from a widevariety of nations (including Australia and NewZealand) have relied on statutory authorities toachieve their development, commercial andfinancial objectives. In recent years statutorycorporations and State-owned companies, whichrepresent sub-classes of the broader class ofstatutory authorities, have emerged. Statutorycorporations are statutory authorities which havebeen given corporate status by the Parliament.Occasionally governments choose to bringstatutory authorities into being through the processof registration under Corporations Law, which isthe usual procedure for the formation ofcompanies in the private sector. In these cases, aState-owned company is created (Wettenhall,1993). Statutory corporations and State-ownedcompanies generally have the power to ownproperty, borrow and invest moneys and they cansue and be sued.

Statutory authorities, statutory corporations andState-owned companies can be further classifiedby the functions they perform. Most statutoryauthorities are non-commercial and performregulatory, appellate or advisory functions. Somemanage public institutions like universities,museums and hospitals. Others, mostly thosewhich have been structured as statutorycorporations and State-owned companies, performcommercial functions. For example, in this Stateboth the Water Authority of Western Australia(WAWA) and AlintaGas engage in commercialactivities, selling products and services to bothdomestic and commercial consumers. In WesternAustralia, statutory corporations and State-ownedcompanies that engage in commercial activitiesare generally referred to as government tradingenterprises (GTEs).

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1.3 Public Sector Reform

Governments worldwide have moved away fromprocess oriented practices, refocusing governmentactivity on outcomes, through the adoption ofprivate sector practices. The commercialisation,corporatisation and privatisation of governmentactivities are part of this reform process.

According to the Commonwealth Joint Committeeof Public Accounts (Commonwealth JCPA) in itsrecently published detailed examination of thecommercialisation of the federal public sector:

the term [commercialisation] is widely used to describe whathappens when governments decide to allow their agencies tocharge the public (or other agencies and entities) for thegoods and services they produce, and to adopt, to varyingdegrees, other features of the commercial environment....Typically, some, if not all, of the following private sectormanagement practices can be found in commercialised publicsector agencies:

• competition with private enterprise to supply theagency’s traditional clients;

• charging for all services with the objective of at leastrecovering costs and, in some cases, making a financialreturn to the Government;

• powers to reinvest or retain a proportion of any profitearned;

• recording costs and revenues on an accrual accountingbasis;

• receiving government funding for those services that aredeemed to be in the public interest; and

• establishing management structures and planningmechanisms typical of the private sector, such as boards,strategic planning and business plans. (1995: 1-2)

Whilst statutory authorities are more likely to havetrading functions than departments, somedepartments provide services on a fee-for-serviceor user pays basis. The Independent Commissionto Review Public Sector Finances (referred to asMcCarrey) recommended that the commercialactivities undertaken by departments should beassumed by ‘semi-autonomous business unitswithin their parent agency’ (McCarrey, 1993: 23).According to the Commonwealth JCPA ‘[f]ullydeveloped business units are stand alone entitieswithin a departmental structure which have abusiness oriented philosophy’ (1995: 17).

In some cases the contracting out of activitiestraditionally provided by the government hasresulted in government bodies developing closeworking relationships with private sectororganisations and/or other government agencies.Whilst not strictly within the legal definition of apartnership some commentators have referred torelationships of this type as ‘partnering’. Forexample, Cherrett states that:

Partnering is a very straight-forward concept built on a long-term relationship between two organisations. Partnering ...comes from the trust which is developed through workingclosely together for mutual benefit and profit. (1994:8)

The Industry Commission has definedcorporatisation as:

the process ... [which] ... separates a [GTE] from the directarm of government. Corporatisation does not necessarilyinvolve ‘incorporation’ under corporations legislation. The[GTE] is either constituted under the corporations law as alimited liability company or as a statutory authority under its

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own legislation. Until recently, corporatisation in Australiahas usually applied the statutory authority model. This modelentails giving the [GTE] a separate legal identity under anAct of Parliament. Each [GTE] is constituted under its ownAct, although umbrella legislation may also seek to regulatesome common aspects of [GTE] activity. (1994: 6)

The term privatisation refers to the sale of either apart or the whole of a government body to theprivate sector. Partial privatisation has notoccurred in Western Australia. Elsewheregovernments have sometimes opted to partiallyprivatise, for example, the Federal Governmentpartially privatised the Commonwealth Bank.Likewise, in the UK the government has oftenchosen to retain a fifty-one per cent share ofprivatised organisations.


2.1 Accountability Framework

In the traditional Westminster system,accountability flows upwards, from chiefexecutive officers through ministers, to theparliament and the people. Ministerialresponsibility, annual reports, audits by theAuditor General, reviews by parliamentarycommittees, the Ombudsman and the Freedom of

Information legislation are important elements ofthe accountability system.

In theory however, the Parliament plays thecentral role in the accountability system,underpinning the effectiveness of the otheraccountability measures. In practice, theParliament has not always been able to developeffective methods to ensure that all governmentbodies are accountable. In particular there hasbeen a long history of accountability failuresinvolving non-departmental public bodies. Whilstnon-departmental public bodies are subject, tovarying degrees, to the elements of theaccountability system, they are allowed a higherdegree of autonomy than that enjoyed bydepartments and generally, a board ofmanagement, rather than a chief executive officer,is answerable to the Minister.

2.2 Legislative Framework

In Western Australia, the legislative frameworkgoverning the monitoring, control andParliamentary scrutiny of State-owned companies,trading enterprises, partnerships and statutorycorporations includes:

• The State Trading Concerns Act 1916 (theSTCA) which applies, in part, to allgovernment departments’ trading activities, aswell as, to ‘trading concerns’ that are eitherlisted in the Schedule to the STCA or declaredby Parliament to be subject to the STCA(s.4(1)). Presently there are no agencies listedon Schedule 1 of the STCA.

• The Financial Administration and Audit Act1985 (the FAAA) which establishes anaccountability framework which applies to alldepartments and statutory authorities. Section3 of the FAAA defines a statutory authority as‘a person or body specified in Schedule 1 [ofthe FAAA]’.

• The Partnership Act 1895 which defines apartnership as ‘the relation which subsistsbetween persons carrying on a business incommon with a view of profit’ (s.7(1)).

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• The Public Sector Management Act 1994which provides for the administration of theWestern Australian public sector, particularlyin relation to the management of humanresources.

• The Associations Incorporation Act 1987which regulates the incorporation of non-profitassociations in Western Australia. A fewstatutory authorities for the purposes of theFAAA, for example, ScreenWest, have beenestablished under this statute.

• The Corporations Law which sets out acomprehensive national scheme for theregulation of corporations. State-ownedcompanies can be incorporated under thisstatute.

• Agency specific legislation which createsspecific agencies and provides for theirregulation, structure and powers (for example,the Marketing of Potatoes Act 1946).

• State Agreement Acts which set out the termsof significant agreements between the stateand other parties for ratification by theParliament (for example, the Iron Ore (MountNewman) Agreement Act 1964).

2.3 Commission on Accountability (BurtCommission)

The Burt Commission was established in 1988 toreview the existing procedures governing financialmanagement and accountability in respect ofgovernment investments and to recommendguidelines to protect the public interest andimprove those procedures where necessary (BurtCommission, 1989). The Burt Commissionrecommended that:

• government agencies should not be constitutedas either partnerships or limited liabilitycompanies;

• definitions of subsidiary and related bodiesshould be included in the FAAA;

• the FAAA should be amended to limit thepowers of subsidiary bodies to those necessaryto achieve the objects of the parent body;

• the Auditor General should audit allgovernment agencies despite the CorporationsLaw provisions for appointing auditors; and

• the Treasurer’s Instructions should govern thereports, financial statements and performanceindicators of subsidiary and related bodies andthe ‘parent’ agency.

Amendments were made to the FAAA in 1989 toimplement all but the first of theserecommendations.

2.4 Royal Commission into CommercialActivities of Government and OtherMatters (WA Royal Commission)

Non-departmental public bodies were central tomany of the matters investigated by the RoyalCommission in 1992. The Royal Commissionexpressed concern at the limited accountabilityframework inherent in the STCA andrecommended it be repealed (1992: II 3.14.10) andreplaced with a State-owned Companies Act(1992: II 3.14.22). It also recommended that theParliament be notified when a company is createdor acquired by a Government-owned body and thata central register of those companies bemaintained by the Auditor General (1992: II3.14.10).

Further, the Royal Commission recommended thatthe members of the boards of management ofGovernment-owned agencies be subject to thesame standards of probity and integrity asexpected of members in the private sector(1992: II 3.14.17). To ensure ongoingaccountability, the Commission recommended thatall existing and future State-owned agencies besubject to audit by the Auditor General and to theprovisions of the FAAA (1992: II 3.14.19).

2.5 Government Policy

In 1993 McCarrey reported that ‘thecorporatisation reform process [had] commenced

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in Western Australia but the pace of reform [was]slow’ (McCarrey, 1993: II 8). The Governmenthas since taken steps to speed up the reformprocess.

In April 1995, the Western AustralianGovernment signed intergovernmental agreementsto introduce a National Competition Policy. Thispolicy, which is based on the reformsrecommended by the National Competition PolicyReview Committee (the Hilmer Committee) aimsto enhance competition in the delivery oftraditional public services. The HilmerCommittee, which reported in August 1993,established principles on:

• the structural reform of public monopolies(including the removal of regulatoryresponsibilities from former monopolies whenthey are subjected to competition);

• competitive neutrality between public andprivate sectors;

• prices oversight of utilities and othercorporations with significant monopoly power;

• a regime to provide access to essentialfacilities; and

• a program of review of the legislationrestricting competition (Treasury, 1995).

From January 1995, in line with both the report ofthe Energy Board of Review and therecommendations of the McCarrey Commission,the State Energy Commission of WesternAustralia was divided into two corporatisedelectricity and gas utilities (Western Power andAlintaGas) and a separate regulatory and policybody (the Office of Energy). In March 1995 theGovernment announced that from January 1996WAWA would be restructured into three agencies:a commercially focused water utility; a policy andregulatory body; and a water resourcemanagement body (Treasury, 1995). Steps havealso been taken to commercialise Westrail and theMetropolitan (Perth) Transport Trust. Theprivatisation of BankWest is awaiting ratificationby federal and British regulatory authorities. TheGovernment is in the process of privatising a

number of agencies including the HealthCareLinen Service.


3.1 The Changing Role of the Public Sector

The Western Australian public sector performs awide variety of functions ranging from theprovision of public health and housing to theoperation of theatres and, until very recently, abank. During the past decade, the role ofgovernment has been reconsidered in WesternAustralia, as has happened in other states. Forexample, at a recent address to members of theWestern Australian Senior Executive Service DrPaul Schapper, acting Chief Executive Officer ofthe Public Sector Management Office, stated that‘[t]he role of government is ultimately to facilitateand to regulate. This is its core business’. In asimilar vein, McKinlay has argued that:

in a modern democratic economy, there are only three rolesrequired of a government, a regulatory role, the delivery ofpublic goods, and a redistributive role ... A regulatory roleencompasses such functions as establishing laws andpractices by which we deal with each other in areas rangingfrom the commercial market place, to basic rules of conduct... and the establishment and protection of fundamentalhuman rights. In the public good category come suchactivities as diplomacy, defence and facilitating the provisionof social services such as health care, education and the like.The redistributive function ... involves such activities astaxing in order to fund social welfare benefits. (1987: 30)

The provision of certain services is perceived bysome as associated with concepts of equity andsocial justice and therefore, the responsibility ofthe government. Rodger comments that there aresituations where ‘there are compelling reasons ofthe wider public interest, justice and impartiality,for [certain] functions not to be performed by theprivate sector’ (1987: 33).

Nonetheless, Wettenhall has commented that:

many contemporary politicians, the economists who guidethem and the organs of the private enterprise system combineto present the view that government has no business doingthings that ... might also be done by private enterprise.(1988: 44)

The Western Australian Government’scompetitive tendering and contracting out (CTC)

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program has resulted in an increased volume ofgoods and services being delivered by the privatesector. A January 1995 survey to identify theextent to which the CTC program had been takenup by the Western Australian public sector foundthat:

the Government had contracted out more than $360 millionworth of contracts per year to the private sector which wereestimated to provide savings of $90 million per annum.(Treasury, 1995: 81)

The private sector provision of goods and servicesthat were once provided by the public sector has,in some cases, resulted in government bodiesdeveloping close relationships with private sectororganisations. It has been suggested that anyrelationships the government has with the privatesector should be transparent. To that end, theScrutiny of Government Contracting Out andPrivatisation Activities Bill 1995 was introducedby the Opposition in March 1995. According tothe media statement which accompanied the Bill,it aims to avoid the formation of ‘cosyarrangements’ with the private sector by ensuringthat the contracting out process is ‘open andaccountable’ (Henderson, 1995: 1).

Important Issues

• What is the appropriate role forgovernment in the late twentiethcentury?

• What should be the core activities ofgovernment?

• To what extent should government beinvolved in business undertakings and inwhat way?

• To what extent should the government’srelationships with the private sector bescrutinised? How should they bescrutinised?

• To what extent should the structure ofgovernment bodies reflect the functionsthey perform?

3.2 The Governance, Monitoring, Controland Parliamentary Scrutiny ofNon-Departmental Public Bodies

3.2.1 The Creation and Establishment ofNon-Departmental Public Bodies

In the United Kingdom (UK), the Committee onStandards in Public Life (Nolan Committee) hasreferred to government agencies which are notdepartments as ‘Non-Departmental Public Bodies’(1995: 66). The Committee’s terminology hasbeen adopted in this paper when referringcollectively to all non-departmental bodies.

Non-departmental public bodies can either bestatutory authorities or non-statutory bodies. Theterm statutory authority describes any agencycreated under the authority of a statute. Thelegislation may be specific to the body beingcreated (for example, the Rottnest Island AuthorityAct 1987). Alternatively, statutory authorities canbe created under general legislation which allowsfor the creation of bodies (for example, theHospitals and Health Services Act 1927).

Non-statutory bodies are government bodieswhich are not departments and have not beenestablished under legislation (for example,independent or semi-independent bodies withadvisory or decision-making powers which are notparts of departments, statutory authorities orgovernment companies). Bodies of this type arenot common in Western Australia. The AustralianSecret Intelligence Service, is one example of suchan agency. Government investments in pre-existing bodies such as corporations also fall intothe non-statutory body category.

The functions performed and powers exercised bynon-departmental bodies vary widely and includetribunals, professional registration boards andthose performing commercial activities. TheStanding Committee on Government Agencies(SCGA) (1994) classified non-departmentalbodies under three functional groupings:operational (for example, WAWA); regulatory(for example, the Equal Opportunity Tribunal);and advisory (for example, the Law ReformCommission).

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In 1987 the SCGA reported that whilst it hadidentified over 560 non-departmental bodies it hadhad ‘considerable difficulty’ in doing so becauseof ‘the absence of any consolidated andcomprehensive record of agencies in operation’(SCGA, 1987: vii). The SCGA recommended theestablishment of a central reference point for thecollection and collation of information ongovernment agencies. As a result since 1992 twoeditions of the State Government Directory: theOfficial Guide to Western Australian GovernmentAgencies have been published. This directory listsall government agencies, their governinglegislation and their responsible minister. In asimilar vein, the federal Senate StandingCommittee on Finance and Public Administration(SSCFPA) has published extensive lists ofnon-departmental bodies since 1978.

In the same 1987 report, the SCGA stated that thecircumstances in which a number of agencies hadbeen set up contributed to the difficultiesexperienced in identifying non-departmentalbodies. The SCGA found that over 300 pieces oflegislation created non-departmental bodies andtherefore recommended that:

the creation of a body which may have considerableexecutive or quasi-judicial powers should warrant morepublic attention than an obscure reference in the GovernmentGazette. The Committee thus recommends that all agenciesshould be the subject of an Act of Parliament rather thansubordinate legislation. (1987: viii)

Nonetheless, the SCGA subsequently reported thatit:

rejected the idea that every operational agency should becreated by an Act of Parliament ... [and] ... recommend[ed]that the creation of every [operational] agency should be byregulation with appropriate publication. (1994:14)

Some non-departmental public bodies haveinvestments in subsidiaries or related companieswhich further complicates the identification ofgovernment companies. Whilst most governmentsubsidiaries in Western Australia are one hundredper cent government-owned, the potential existsfor the government to be a minority shareholder ina subsidiary. This may mean that the subsidiarycompany is not government-controlled.

In some situations ministers and governmentbodies are able to establish a government interestin bodies without the need for explicitparliamentary authority or knowledge. Somecommentators have argued that this practiceundermines the concept of ministerialresponsibility to the parliament. Senator JohnCoates, a former Chairman of the SSCFPA, hasargued that to ensure appropriate monitoring ofgovernment subsidiary and related companies ‘noparticipation by government in companies shouldoccur without parliamentary approval’ (1990: 9).

Important Issues

• What framework should be adopted forthe creation or establishment of aninterest in non-departmental publicbodies?

• Should there be provision for explicitparliamentary authority for the creationof such bodies and, if so, should the typeof authority required be the same for alltypes of bodies?

• What is the best means of identifyingand keeping track of all non-departmental public bodies?

• Should departments or non-departmentalpublic bodies be able to acquire interestsin other bodies? If so, under whatconditions?

• Should there be specific requirements toreport the establishment or creation of agovernment interest in a non-statutorypublic body to parliament?

3.2.2 Application of Accountability Measures

The legislation governing each non-departmentalpublic body details the nature of that body’srelationship with its minister as well as the otheraccountability measures which apply to thatauthority. All officers and employees of

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non-departmental public bodies are subject to theOfficial Corruption Commission’s jurisdiction. In1992, the SCGA reported that nearly forty per centof non-departmental bodies may not be subject tothe Ombudsman’s jurisdiction. Whilst some non-departmental public bodies are purely advisorybodies, many others have financial powers and aresubject to the FAAA.

A non-departmental body is a statutory authority,for the purposes of the FAAA, when it is includedon Schedule 1 of that Act. This can be achievedthrough a provision in the body’s enablinglegislation or through a regulation made pursuantto s.4(2) of the FAAA. Treasury makes a decisionwhether or not a non-departmental body should beincluded on Schedule 1 after an assessment of thenature of the organisation. For example, bodiesthat are solely funded from private sources andlocal government authorities are generally notincluded. Agencies that are subject to the FAAAare required to submit financial estimates to therelevant minister (s.42), produce annual reports(s.66) and be audited by the Auditor General(s.78). Agencies that are not subject to the FAAAmay not be required to report publicly or beaudited.

To overcome perceived gaps in the accountabilityof non-departmental public bodies, the SCGArecommended that a State Agencies Act beintroduced. Under s.5 of the SGCA’s proposedState Agencies Act each agency would be subjectto the FAAA, the Parliamentary CommissionerAct 1971 and the Freedom of Information Act1992. Others have suggested that umbrellalegislation, such as the SCGA’s proposed StateAgencies Act, would not be flexible enough toallow for the variety of non-departmental publicbodies that exist. For instance, it has been arguedthat it would be inappropriate for tribunals such asthe Equal Opportunity Tribunal to be accountableto a minister to the same extent as an operationalagency such as the Tourism Commission.

Important Issues

• How should the activities of non-departmental public bodies be governed,monitored and controlled? Is there needfor umbrella legislation, such as the StateAgencies Act proposed by the SCGA?

• Where should the accountabilityrequirements for non-departmentalpublic bodies not on Schedule 1 of theFAAA be prescribed? What should theybe?

• How and to what extent shouldparliament directly review the activitiesof non-departmental public bodies?

3.2.3 Boards of Management

It has been argued that to obtain efficient results,boards of management must have the autonomyand the authority to make the necessary decisions.Board appointments are generally made by theGovernor on the recommendation of the relevantminister. The Royal Commission was of theopinion that ‘public servant[s] should not beappointed to the board of a statutory authority orState-owned company’ (1992: II 3.14.13). Thisissue will be further examined when SpecifiedMatter 8 is addressed in Phase 4 of theCommission’s inquiries.

The measures in place to prevent ministerialintervention in the operations of State-ownedtrading enterprises may be nullified if the ministerhas appointed all of the board members. McCarreyargues that where ministers make boardappointments, the process may be driven ‘byinvitations to representatives of special interestgroups, friends and acquaintances and smallnetworks of government ministers’ (McCarrey,1993: 14). The Nolan Committee (1995)recommended that ministers should continue tomake board appointments, but that an independentPublic Appointments Commissioner shouldregulate, monitor and report on the publicappointments process.

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Some commentators have argued that the duties,responsibilities and liabilities of the members ofgovernment boards should be guided bylegislation, as happens in the private sector. Whilstthe recent legislation establishing the two energycorporations sets out the duties of board members,earlier legislation did not always do so.

Important Issues

• How should the members of the boardsof management of non-departmentalpublic bodies be appointed andremoved?

• How should the duties, responsibilitiesand performance of board members begoverned, controlled, monitored andscrutinised?

3.2.4 The Role of Ministers

Ministerial intervention in the operations ofcertain non-departmental public bodies could beconsidered to be undesirable. For instance,ministerial intervention in commercialised orcorporatised State-owned bodies could lead todecisions being made for political rather thancommercial reasons. Likewise, it is widelybelieved that bodies such as tribunals need adegree of independence from ministerialintervention. Nonetheless, as representatives of theowners of the body, through the parliament,ministers are the public’s primary source ofinformation about the operations ofnon-departmental public bodies.

In New Zealand, Mascarenhas has pointed out that‘public disclosure of information required forparliamentary accountability is viewed by theboards and ministers alike as inconsistent withcommercialisation’ (1990: 136). A similar viewappears to be taken by some Western Australianministers, for example in August 1995, theMinister for Energy, in answering a question onthe details of a contract entered into by WesternPower stated that:

Can you appreciate the point that I do not know the price ofelectricity? I would not ask the price and indeed it would beimproper for me to ask the board of Western Power for theprice of electricity ... Western Power and AlintaGas arecorporations and their boards have [the responsibility forrunning them] ... [As Minister] I set the policy and they areresponsible for the commercial side. (WAPD, Assembly, 24August 1995: 8)

Treasurer’s Instruction 903 ‘Report onOperations’ requires statutory authorities, theirsubsidiaries and any related bodies to provide, intheir annual reports, the details of any ministerialdirections received in relation to the setting ofoperational objectives, the achievement ofoperational objectives, investment activities, andfinancing activities. The legislation establishingWestern Power and AlintaGas goes further byrequiring any Ministerial directions to be inwriting and laid before both Houses of Parliamentwithin fourteen days. These two statutes also statethat the Minister must be consulted on majorinitiatives which are likely to be of significantpublic interest. Ministerial approval must beobtained for transactions greater than a prescribedamount.

Likewise, it is common for the legislationestablishing specific Commonwealth statutoryauthorities to require that any ministerialdirections be tabled in parliament within stricttimeframes and/or reported in annual reports. Inthe case of the Australian BroadcastingCorporation ministerial directions are barred bystatute to ensure the independence ofdecision-making.

Important Issue

• What is the best means of ensuring thatnon-departmental public bodies areaccountable to their ministers and theministers to the Parliament?

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3.3 The Governance, Monitoring, Controland Parliamentary Scrutiny of theCommercial Activities ofNon-Departmental Public Bodies

3.3.1 Commercialisation, Corporatisation andPrivatisation

There is general consensus that commercialisationcan ‘increase the efficiency and effectiveness withwhich public resources are used’ (CommonwealthJCPA, 1995: xxiv). Commercialisation involvesadministrative reforms whereas corporatisation,which has also been referred to as ‘fullcommercialisation’, involves both legal andorganisational changes to an agency through ‘theestablishment of an operating environment ...which replicates ... [that] faced by successfulprivate enterprises’ (Farrar and McCabe, 1995:25). Government-owned corporations are:

• corporate bodies with their own legal identitywhich have been established by statute or inwhich the Government has obtained a specificinterest;

• managed by a board appointed by the relevantminister;

• free to manage their affairs without detailedsupervision by Parliament; and

• financially independent in the sense that theyhave powers to maintain their own reservesand to borrow within limits laid down byParliament (Farrar and McCabe, 1995).

Government agencies can be corporatised throughincorporation under the Corporations Law or bytheir own enabling legislation. Alternatively, thegovernment can purchase an interest in an existingcorporation and use it to perform certain roles.Senator Coates, has argued against both thedecision to corporatise government bodies and theuse of the Corporations Law to do so:

I could see no advantage in the use of the company formover statutory authority structure and considered that its useis likely to at least complicate, and probably reduceaccountability in practice. (Coates, 1990: 9)

The view that government bodies should not beincorporated under the Corporations Law was alsoadvanced by the Burt Commission (1989). Thelimited control the State can exercise over theform and content of the Corporations Law is seenby some as a drawback to its use: whilst Statelegislation can be drafted to be agency specific,the Corporations Law cannot. On balance,McCarrey preferred the ‘corporatisation of GTEsunder State statutes’ (1993: 21), however he addedthat where corporatisation was undertaken toprepare an agency for privatisation, ‘it may bemore appropriate to use the provisions of theCorporations Law’ (1993: 21).

In Western Australian corporatisation hasgenerally been implemented using agency specificlegislation. Elsewhere, for example, in Queenslandand New Zealand, umbrella legislation has beenenacted to spell out the commercial principles,rights and obligations of Government-ownedcorporations and lay down monitoring andaccountability procedures to allow the parliamentand the government to assess the performance ofthe companies and their boards. TheCommonwealth JCPA believes that ‘[umbrella]legislation is likely to produce a more uniformresult than separate legislation’ (1995: 34).Likewise, McCarrey recommended that ‘umbrellalegislation should be implemented to provide thecorporatisation blue-print for all GTEs to follow’(1993: 22).

Most Australian governments are of the view thatthe corporatisation process needs to reflect fourprinciples (which are discussed later in this paper),namely:

• clarity of objectives;

• management autonomy and authority;

• accountability for performance; and

• competitive neutrality.

Privatisation is often seen as a natural progressionfrom the corporatisation of a government agency.Although privatisation has found favour in theUK, to date, it has been less popular in Australia

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and New Zealand (Farrar and McCabe, 1995). Inthe UK, where nearly fifty government agencieshave been privatised since 1979, HM Treasury hasstated that the government’s objective forState-owned corporations is ‘to ensure theireffectiveness and efficiency as commercialconcerns and to strengthen them to the pointwhere they can be transferred to the private sector’(Carter, 1990: 174).

In the UK a number of State-owned corporations,such as British Telecom and British Gas, wereprivatised as monopolies. Schott contends that:

privatisation into an uncompetitive environment is likely tobe positively harmful. Privatisation will improve efficiencyonly if it is supported by liberalisation for more competition.(1990: 115)

In Australia, the usual approach adopted has beento privatise public monopolies only after acontestable market has been established.

McCarrey (1993) identified various forms ofprivatisation including: direct sale to a privatesector purchaser (which will be the case withBankWest); a share market float (as occurred withthe SGIO); and management buy-outs through thesale of equity to management or employees.Regardless of the form that commercialisation,corporatisation and privatisation take, theCommonwealth JCPA (1995) concluded that it isessential that measures are taken to minimise theadverse impacts that commercialisation,corporatisation and privatisation can have onemployees. For example, the CommonwealthJCPA recommended that appropriateredeployment and redundancy arrangementsshould be made whenever agencies arerestructured.

Important Issues

• What are the best means ofcommercialising and corporatisinggovernment agencies?

• What should the Parliament’s role be inrelation to the commercialisation,corporatisation and partial privatisationof government agencies?

• Is there need for umbrella legislation toenable parliament to monitor andscrutinise the commercialisation,corporatisation or partial privatisation ofgovernment agencies?

• Should there be any restrictions oncommercial and corporatised agenciesmaking profits, producing revenue orcompeting with the private sector?

• Is there a need for reporting, monitoringand parliamentary scrutiny of non-controlling interests established by thegovernment in corporations?

3.3.2 Balancing Autonomy and Accountability

Government bodies are generally subject to theimmediate control of a minister, through whomthere is a chain of accountability to parliament.This model of accountability is modified whenagencies are corporatised because:

the government removes itself from the day to day operationof the business and acts more as a shareholder providingstrategic directions to the business. (Commonwealth JCPA,1995: 2)

McCarrey argued that if trading enterprises are tobe commercially successful, governments mustadopt an arm’s length approach to their operationbecause:

[g]overnment involvement in the day-to-day operations of aGTE, as distinct from overall policy considerations, can leadto operating inefficiencies and uncertainty overaccountability for its performance. (McCarrey, 1993: 13)

Whilst acknowledging trading enterprises’ needfor flexibility and therefore, more autonomy thanother government bodies generally enjoy, a formerCommonwealth Auditor General has argued that:

accountability is not negotiable so you have to build in asystem which allows proper accountability whilst preserving[trading enterprises’] competitive position. (CommonwealthJCPA, 1991: 21)

Likewise, the Royal Commission recommendedthat where statutory authorities or State-ownedcompanies are ‘given some level of independence

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from ministerial control, that autonomy must beconferred openly and explicitly by Parliament’(1992: 3.14.13).

Even though they are more autonomous than othergovernment bodies, GTEs are not autonomous inthe same way as private sector bodies. To varyingdegrees they are all constrained by theirgovernment ownership. Ministers are ultimatelyresponsible for GTE performance and have thepower to direct them. GTEs are also subject to theglobal borrowing limits imposed by the Statewhich may limit their ability to raise debt capital.

Important Issues

• What are the best means of balancing theaccountability and autonomy ofcommercially oriented governmentbodies?

• How should the accountability ofcommercially oriented governmentbodies be assured?

3.3.2.1 Corporate Planning

Statutory authorities on Schedule 1 of the FAAAobtain ministerial approval of their financialestimates (s.42). These estimates are not presentedto parliament. Likewise, the corporate andstrategic plans of trading enterprises, such asbusiness units within government departments, donot require external approval.

The two energy corporations must produceStrategic Development Plans setting outeconomic, financial and operational objectives andhow those objectives are to be achieved over thenext five years. Additionally, Statements ofCorporate Intent outlining the corporations’objectives, performance targets and the like for thenext year must be produced. Both documents mustbe submitted to the minister and agreed upon.

Whilst the Statement of Corporate Intent is tabledin Parliament and is therefore a public document,the Strategic Development Plan is a confidentialdocument and is not subject to Parliamentaryscrutiny. Some critics have assessed these plans as

‘superficial and deficient because [they] offer onlygeneralised statements of philosophy which aredifficult to measure’ (Mascarenhas, 1990: 136).

Important Issue

• What are the best means of allowing forthe parliamentary scrutiny of thecommercial plans of non-departmentalpublic bodies?

3.3.2.2 Reporting Requirements

Whilst bodies subject to the FAAA produceannual reports, business units operating withindepartments are not separately reported on unlessthey operate against a separate trust account.Hence, it may be difficult to assess the extent towhich these units operate in an efficient andeffective manner. The Commonwealth JCPA(1995) suggested that the federal Department ofAdministrative Service’s model, under which theCabinet approves the charter of each business unit,should be adopted.

The legislation governing AlintaGas and WesternPower requires them to produce quarterly andannual reports containing financial statements, areport on operations and any other informationrequired to be reported in accordance with theStatement of Corporate Intent. The financialstatements of these two corporations are preparedin accordance with the Corporations Law not theFAAA. This decision was made because it iswidely considered that the Corporations Lawallows for greater disclosure and easiercomparison with private sector corporations.Although the two energy corporations are notsubject to the reporting regime of the FAAA theyare subject to its audit provisions.

The Corporations Law obliges all private sectorcompanies to hold an Annual General Meeting(AGM). The AGM is open to all shareholders andimportant issues such as the company’s financialstatements and the appointment and remunerationof directors are reported and discussed. In WesternAustralia, State-owned companies are not requiredto hold an AGM.

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Important Issue

• How should non-departmental publicbodies and their subsidiaries be requiredto report?

3.3.2.3 Audit Requirements

The Royal Commission recommended that all‘State-owned or controlled bodies be subject bothto the audit of the Auditor General and to theprovisions of the [FAAA]’ (1992: II 3.14.19). Allpublic bodies which are listed on Schedule 1 to theFAAA are subject to both the financial andperformance audit mandate of the AuditorGeneral, regardless of whether they arecommercialised or corporatised. Although not onSchedule 1, AlintaGas and Western Power are alsosubject to audit by the Auditor General. Likewise,State-owned companies in most other Australianjurisdictions are audited by the relevant AuditorGeneral. At the federal level the Auditor Generalhas limited powers to conduct efficiency audits ofgovernment trading enterprises.

Business units are not the subject of separate auditopinions. The Auditor General may however,choose to examine their operations during thecourse of either a financial or performance auditof their parent agency.

Important Issue

• How should non-departmental publicbodies and their subsidiaries be audited?

3.3.2.4 Parliamentary Scrutiny and PublicAccountability

In the federal sphere there has been some debateover the extent to which non-departmental publicbodies and their officers should be able to bedirectly questioned by parliamentary committees.In 1991 three members of the SSCFPA voted thatthese bodies should only be required to attendestimates hearings if they received fundingthrough the budget. The other three members ofthe committee believed that estimates committees

should be able to scrutinise the activities of allgovernment bodies regardless of how they arefunded.

In conducting its recent inquiry into thecommercialisation of the federal public sector, theCommonwealth JCPA heard evidence from bothtrading enterprises and others that it was notappropriate for parliamentary committees toexamine the activities of corporatised agencies.For example, it was argued that:

[g]iven the commercial elements of the organisationscommercial charters and the off-budget financing of capitalworks it is certainly arguable that such scrutiny is notnecessary. (Ansett submission as quoted in CommonwealthJCPA, 1995: 170)

Nonetheless, the Commonwealth JCPA endorsedthe view that ‘it is essential that the Parliamentretains the right to examine ... all governmentowned entities’ (1995: 171). Likewise, McCarreyrecommended that government trading enterprisesshould be subject to ‘review by parliamentarycommittees, especially the Public Accounts [andExpenditure Review] Committee’ (1993: 17).

Similarly, conflicting opinions on whethercorporatised bodies should be subject to theOmbudsman’s jurisdiction were also submitted tothe Commonwealth JCPA inquiry. Somesubmissions argued that GTEs should be exempt ifthey operate ‘in a market where there is realcompetition’ (Administrative Review Councilsubmission as quoted in Commonwealth JCPA,1995: 173). The Public Interest Advocacy Centreon the other hand argued that regardless of theextent to which they operate in a competitiveenvironment ‘the Ombudsman [should be able] toinvestigate “matters of administration”, which willexclude decisions involving a degree ofcommercial skill and judgement’ (as quoted in theCommonwealth JCPA, 1995: 174).

There is also some debate whether commerciallyoriented non-departmental public bodies should besubject to other accountability measures such as,parliamentary questions and the Freedom ofInformation Act 1992. Some commentators arguethat being subject to such measures wouldundermine the efficiency of commercially oriented

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bodies. Others argue that so long as theseagencies are owned by the government theyshould be required to meet the public’saccountability requirements.

Important Issue

• To what extent should the government’strading activities be open toparliamentary and public scrutiny?

3.3.3 Balancing Public Interest and ProfitMaximisation

There is debate whether the measures used tojudge the performance of private sector bodiesshould be applied to non-departmental publicbodies. For example, Wettenhall and Nuallainhave argued that:

an important distinction [should be] drawn between privateprofitability (judged by the purely commercial tests ofprivate enterprise) and public profitability (taking socialcosts and benefits into account, and leading to a much moreappropriate standard for testing public enterprises). (1990:18)

The Commonwealth JCPA concluded that ‘thebehaviour of government entities should be of thehighest standard’ and argued that governmentbusinesses should ‘set a good example’(1995: 107). Carter (1990) argues that indicatorsof the level and quality of service should berequired of commercially oriented governmentagencies. Umbrella legislation in otherjurisdictions tends to state that the principalobjective of State-owned enterprises is to operateas successful business undertakings ‘at least asefficiently as any comparable business’ whilst‘exhibiting a sense of social responsibility byhaving regard to the interests of the community inwhich it operates’ (s.8 of the State OwnedCorporations Act 1989 (NSW)). In contrast, thelegislation governing the two most recentlycorporatised bodies in Western Australia,AlintaGas and Western Power, does not establishsocial objectives or responsibilities for thecorporations.

Important Issues

• How can profit motivated agencies bestbalance issues of public interest such asquality of service, equity and access?

• Is umbrella legislation the best means ofensuring these bodies fulfil both theircommercial and their public interestobligations?

• Should commercial bodies be required toreport on their non-financialperformance and comply withgovernment policies, such as equalopportunity, or just on their financialresults?

• Should the government operate any bodyunless there are special reasons of publicinterest for doing so?

3.3.4 Community Service Obligations

Many trading enterprises have responsibility for arange of non-commercial activities generallyreferred to as community service obligations(CSOs). The Steering Committee on NationalPerformance Monitoring of Government TradingEnterprises has stated that:

A CSO arises when a government specifically requires apublic enterprise to carry out activities relating to outputs orinputs which it would not elect to do on a commercial basis,and which the government does not require other businessesin the public or private sectors to generally undertake, orwhich it would only do commercially at higher prices (asquoted in Treasury, 1994: ii).

Although CSOs provide a range of social benefitsand meet a variety of government policies, theirpresence may also impact on other users of theservices of these enterprises and on the financialperformance of the trading enterprise itself. Theissue of whether, and if so how, a tradingenterprise is to provide CSOs raises a number ofcomplex questions regarding funding,identification, costing, monitoring and reportingrequirements.

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Governments may opt to separately identify, cost,and finance CSOs by directly compensating thetrading enterprise or providing a direct subsidy tothe community group concerned. Scales (1992)argues that individually identifying, costing andfunding CSOs would remove the problemsassociated with cross-subsidisation and providegreater transparency, allowing the legitimacy ofthe government’s social policies to be assessedand their order of priority established.

In addition, some commentators have suggestedthat unless they are transparent, the granting ofCSOs may present the opportunity for corrupt orimproper behaviour to occur. Unscrupulouspoliticians may, for example, direct a governmentagency to provide a subsidy to a particular sectionof the community in order to gain personaladvantage for themselves.

On the other hand, whilst acknowledging thattransparency may facilitate good management,some commentators have suggested that:

the clear identification of ... [CSOs] ... may threaten thecontinuity of the relevant services: it may be harder forgovernment to win overt budget support for them than tohave them hidden with cross-subsidising arrangementsinternal to particular enterprises. (Wettenhall and Nuallain,1990: 12)

Important Issue

• What method should be used to identifyand fund CSOs?

3.3.5 Competitive Neutrality - Financial andRegulatory Arrangements

The Commonwealth JCPA argued that ‘[i]f theGovernment is to obtain the most efficient andeffective operation possible for its businesses, it isimportant that the [financial and regulatory]arrangements put in place are appropriate’(Commonwealth JCPA, 1995: 108). The HilmerCommittee considered that the creation of a levelplaying field, or competitive neutrality, was animperative in the commercialisation process.

To this end, in March 1994 all Australiangovernments agreed to a framework for the states

and territories to apply income and sales taxequivalents to their trading enterprise (Treasury,1995). In Western Australia ‘tax equivalents’ arepaid to the Consolidated Fund in accordance withthe Public Authorities (Contributions) Act 1974.In those jurisdictions where umbrella legislationhas been enacted to govern the activities ofState-owned enterprises, that legislation containsdetails of the taxation equivalents to be paid bythose enterprises. Dividends are generally treatedin a similar manner. Whilst the legislationgoverning AlintaGas and Western Power providesfor payments in lieu of taxation and dividends, theTreasurer has discretion over whether paymentsare to be made and the amount to be paid.

The Commonwealth JCPA (1995) argued that it isimportant that the prices charged by governmententerprises are set at appropriate levels.Establishing prices in an uncompetitiveenvironment is a complex task. TheCommonwealth JCPA recommended that thefederal Department of Finance should provide‘comprehensive guidelines on best practice in thecosting and pricing of government produced goodsand services’ (1995: 121). In Western Australia,Treasury has provided commercialised enterpriseswith some guidance to pricing in its 1994document Costing Government Services: PricingGuidelines for Use by Agencies.

In most Australian states decisions about thepricing of GTEs’ products are left to ministers orthe cabinet without the benefit of independent,expert advice. In New South Wales however, theGovernment Pricing Tribunal Act 1992 establishesan independent pricing tribunal to determine theprices of GTEs’ products. Victoria’s recentlyestablished Office of the Regulator-General alsohas the power to determine and regulate prices.McCarrey recommended that a similar body beestablished by statute in Western Australia (1993).

The Competition Policy Reform Act 1995 (Cwlth)will amalgamate the Trade Practices Commissionand the Prices Surveillance Authority to create anew Australian Competition and ConsumerCommission (ACCC). Through amendments tothe Prices Surveillance Act 1983, the Act willextend price monitoring processes to all State and

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Territory government businesses. The Act willalso amend the Trade Practices Act 1974 (TPA)so that, with State and Territory applicationlegislation, State-owned GTEs will be subject tothe jurisdiction of the TPA to the same extent astheir private sector counterparts.

In addition to establishing appropriate financialarrangements, McCarrey concluded that‘[r]esponsibility for policy and regulatoryfunctions should be transferred from GTEs togeneral government agencies’ (McCarrey, 1993:10). This approach was adopted with thereorganisation of the former State EnergyCommission. AlintaGas and Western Power weregiven commercial roles and responsibility forregulating the energy industry and providing theminister with advice was assigned to the Office ofEnergy. The Office’s function is to provide policyadvice and regulate technical and safety factors inthe energy sector. A similar approach is beingtaken to the corporatisation of WAWA.

The Office of Energy is answerable to the sameminister as the two energy corporations. BothMcCarrey (1993) and the Industry Commission(Commonwealth JCPA, 1995) argue that whereState-owned bodies are corporatised, there shouldbe some separation of ministerial responsibilityfor the regulatory and commercial aspects of theagency.

Thynne (1994) contends that small regulatoryagencies with limited jurisdictions, such asBritain’s Office of Telecommunications (OFTEL)are prone to ‘capture’ by the companies they havebeen established to regulate. In contrast he arguesthat where a single central regulatory body isestablished, the likelihood of capture is reducedand the level of effectiveness increased. Examples,of such central regulatory bodies are NewZealand’s Commerce Commission and Victoria’sOffice of the Regulator-General.

Commercialised business units which do notoperate at arm’s length to the government may notoperate in competitively neutral environments.They may, for example, have access toconfidential information which has beencompulsorily acquired and may not be available totheir competitors. Therefore they may have an

unfair advantage over their private sectorcompetitors.

Important Issues

• Should a broadly-focussed independentbody be established to regulate theprices, standards and conditions ofservice and supply, market conduct andlicensing?

• How can the competitive neutrality ofcommercialised government bodies beassured?

3.3.6 Performance Monitoring

McCarrey believed that ‘[i]t is not sufficient forboards to be the sole source of information andadvice to government on their GTE’sperformance’ (1993: 17) and concluded that anexternal monitoring system was necessary. APerformance Monitoring Unit has been establishedin Treasury to monitor the performance of tradingenterprises.

Western Australia is also represented on theSteering Committee on National PerformanceMonitoring of Government Trading Enterpriseswhich publishes key indicators of the performanceof Australian GTEs. Whilst GTEs acknowledgethe importance of performance monitoring, somehave commented that the inconsistencies betweenthe requirements of the monitoring bodies have anunnecessarily burdensome effect on theirperformance. It has been suggested that somerationalisation of the monitoring undertaken isnecessary.

Important Issue

• What criteria and systems should be usedto monitor the performance ofcommercially oriented governmentagencies?

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4. SUMMARY

The use of non-departmental public bodies in anera of public sector reform raises issuesconcerning the appropriate balance betweenaccountability and autonomy. Senator Coatesargued that ‘[i]f accountability is weakened,inefficiency is encouraged and even the possibilityof impropriety increased’ (1990: 11). The RoyalCommission believed that it was essential ‘to setout explicitly the accountability obligations to beimposed on these bodies’ (1992: 3.14.1). Thispaper discusses the various legislative and othermeans of governing, monitoring, controlling andproviding for the Parliamentary scrutiny ofState-owned companies, trading enterprises,partnerships and statutory authorities.

REFERENCES

Carter, N. (1990) ‘Britain’ in Wettenhall andNuallain (editors) Public Enterprise PerformanceEvaluation: Seven Country Studies Brussels:International Institute of Administration Sciences

Coates, J. (1990) ‘Government-OwnedCompanies and Subsidiaries: Issues inAccounting, Auditing and Accountability’Australian Journal of Public Administration49(1): 7-11

Cherrett, K. (1994) ‘Gaining CompetitiveAdvantage’ Australian Journal of PublicAdministration 53(1): 6-13

Commonwealth, Joint Committee on PublicAccounts (Commonwealth JCPA) (1995) ‘PublicBusiness in the Public Interest’ Report 336Canberra: AGPS

Commonwealth, Joint Committee on PublicAccounts (Commonwealth JCPA) (1991) ‘AnnualReporting Guidelines for Statutory Authorities’Report 309 Canberra: AGPS

Farrar, J. and McCabe, B. (1995)‘Corporatisation, Corporate Governance and theDeregulation of the Public Sector Economy’Public Law Review 6: 24-43

Henderson, Y. (1995) Media Statement byYvonne Henderson MLA Thursday March 23

Hodges, R. and Wright, M. (1995) ‘Audit andAccountability in the Privatisation Process: TheRole of the National Audit Office’ FinancialAccountability and Management 11(2): 153-170

Industry Commission (1994) Information Paper:Improving the Efficiency of GBEs Canberra:AGPS

Mascarenhas, R. C. (1990) ‘New Zealand’ inWettenhall and Nuallain (editors) PublicEnterprise Performance Evaluation: SevenCountry Studies Brussels: International Instituteof Administrative Sciences

McKinlay, P. (1987) Corporatisation: TheSolution for State Owned Enterprise? Melbourne:Victoria University Press

Rodger, S. (1987) Corporatisation andPrivatisation: Completing the Revolution? addressto the Institute of Policy Studies as quoted inMcKinlay Corporatisation: The Solution for StateOwned Enterprise? Melbourne: VictoriaUniversity Press

Scales, B (1992) ‘Reforming Public SectorEnterprises’ IPA Review 45(4): 30-33

Schapper, P. (1995) ‘Public Sector ManagementFramework’ Address presented to the SeniorExecutive Service 20 July

Schott, K. (1990) ‘Competitive Markets and theProvision of Public Services’ Australian Journalof Public Administration 49(2): 113-123

United Kingdom, Committee on Standards inPublic Life (Nolan Committee) (1995) ‘Standardsin Public Life’ Volume I: Report London: HMSO

National Competition Policy Review Committee(the Hilmer Committee) (1993) Report Canberra:AGPS

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Thynne, I. (1994) ‘The Incorporated Company asan Instrument of Government: A Quest for aComparative Understanding’ Governance: AnInternational Journal of Policy andAdministration 7(1): 59-82

Western Australia, Commission on Accountability(Burt Commission) (1989) Report to the PremierPerth

Western Australia, Energy Board of Review(1992) The Energy Challenges for the 21stCentury: A Public Discussion Document Producedby the Energy Board of Review Perth

Western Australia, Independent Commission toReview Public Sector Finances (McCarrey) (1993)‘Agenda for Reform: Volume 2’ Report Perth


Western Australia, Treasury (1994) CommunityService Obligations Performed by GovernmentTrading Enterprises Perth

Western Australia, Treasury (1995) 1995-96Economic and Financial Overview: Budget PaperNo. 5 Perth

Western Australia, Standing Committee onGovernment Agencies (SGCA) (1994) ‘StateAgencies: Their Nature and Function’ Thirty-sixthReport Perth

Western Australia, Standing Committee onGovernment Agencies (SGCA) (1992) ‘TheEstablishment, Role and Scrutiny of GovernmentAgencies: Interim Report No. 2 (Survey ofGovernment Agencies)’ Thirtieth Report Perth

Western Australia, Standing Committee onGovernment Agencies (SGCA) (1987)Government Agencies in Western Australia ThirdEdition Perth

Wettenhall, R (1993) ‘Australian StatutoryCorporations and the American Public AuthorityTradition’ Canberra Bulletin of PublicAdministration 75 December: 40-50

Wettenhall, R. (1988) ‘Why Public Enterprise?’Canberra Bulletin of Public Administration 57December: 44-50

Wettenhall, R. and Nuallain, C. O. (editors) (1990)Public Enterprise Performance Evaluation: SevenCountry Studies Brussels: International Institute ofAdministrative Sciences

LEGISLATION

Associations Incorporation Act 1987

Competition Policy Reform Act 1995 (Cwlth)

Corporations Law

Electricity Corporation Act 1994


Gas Corporation Act 1994

Government Pricing Tribunal Act 1992 (NSW)

Partnership Act 1895


Public Authorities (Contributions) Act 1974

Scrutiny of Government Contracting Out andPrivatisation Activities Bill 1995

State Trading Concerns Act 1916

State-Owned Corporations Act 1989 (NSW)

Trade Practices Act 1974

Treasurer’s Instructions

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Notes:

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Notes:

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preventing corrupt, illegal or improper conduct inthe public sector.



SUBMISSIONS




FORMAT






OR

PREFACE





This paper deals with Specified Matter 22 whichconcerns guidelines to be observed by caretakergovernments. It also discusses Specified Matter23, which is about regulating governmentadvertising and travel during an election period.

The initial task of the Commission is to inquireinto these matters from the viewpoint of

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are submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a. (This is especially important for lengthysubmissions.)

CONTENT






Please send your submission to:The ChairpersonCommission on Government6th Floor, May Holman Centre32 St George’s TerracePerth WA 6000Fax: (09) 222 0522Phone: (09) 222 0544



CONTENTS

SPECIFIED MATTER 22GUIDELINES FOR CARETAKERGOVERNMENTS

1. INTRODUCTION



3.1 Duration of the Caretaker Conventions3.2 Notification of Conventions3.3 Policy Development and

Implementation3.4 Policy Announcements and Election

Promises3.5 The Operation of Cabinet During the

Caretaker Period3.6 Appointments to the Public Service3.7 Consultation Between the Opposition

and the Public Service3.8 The Role of Public Servants3.9 Legislation During the Caretaker

Period3.10 The Final Decision on Government

Activities During the Caretaker Period3.11 The Legal Standing of the Caretaker

Conventions

SPECIFIED MATTER 23REGULATING GOVERNMENTADVERTISING & TRAVEL

1. INTRODUCTION

2. WESTERN AUSTRALIANCONTEXT

2.1 Electoral Amendment (PoliticalFinance) Act 1992 (PFA)

2.2 Government Circulars2.3 The Advertising Standards Council

(ASC)

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3.1 Government Advertising3.1.1 Regulating Government

Advertising3.1.2 Government Advertising and

Government Information3.1.3 Types of Regulation

3.1.3.1 Legislative Regulation3.1.3.2 Guidelines3.1.3.3 Private Industry

Regulation3.1.4 Truth in Political Advertising

3.2 Government Travel3.2.1 Travel by Members of

Parliament3.2.2 Travel by the Premier, the

Leader of the Opposition andMinisters

3.2.3 Travel by Partners of Membersof Parliament

3.2.4 Travel by Public Servants3.2.5 Travel During A Pre-Election

Period3.2.6 Accountability and Government

Travel

4. SUMMARY

REFERENCES

SPECIFIED MATTER 22GUIDELINES FOR CARETAKERGOVERNMENTS

1. INTRODUCTION

The responsibility and accountability ofgovernment to the Parliament and the people is anessential feature of the Western Australianpolitical system. Government responsibility andaccountability should be maintained whilst ingovernment and during the election period.Accountability for public monies spent onadvertising and travel must be maintained notonly through the life of the Government but alsoduring the election period.

Specified Matter 22 reads:

22. The appropriate guidelines to be observed by caretakergovernments in relation to their conduct andmanagement prior to elections.

Between the dissolution of the LegislativeAssembly and the determination of the result ofthe election, the government is free to operatewithout accountability to Parliament. With noelected chamber to which the executive isresponsible, ministers are no longer answerable toParliament for their conduct and the actions oftheir departments. With the government of theCrown required to be conducted at all times, thislack of accountability means it is important thatguidelines exist to review the operation ofgovernment during the caretaker period to preventcorrupt, illegal and improper conduct.

Governments have attempted to developconventions to deal with the difficult problems ofpublic administration in the immediate periodprior to an election. Conventions have also beendeveloped to assist in the transition in governmentshould this be necessary as the result of anelection. The conventions are designed to preventan incumbent government from making decisionsor appointments which may bind an incominggovernment. They are also designed to preventmembers of the government using their position,resources and public funds to influence the resultof an election.

The principle behind caretaker conventions is thatgovernment should not make major policydecisions during an election period. Simply put,caretaker conventions defer the taking of decisionsby government which are likely to have an effectbeyond a possible change of government.

Caretaker conventions were first formally appliedin Australia in 1951 when Prime Minister Menzieswrote to all Ministers following the dissolution ofParliament:

I should also be glad if you would note that whilstcontinuing to take whatever action you deem necessary inconnection with the ordinary administration of yourDepartment, you should not make any decisions on mattersof policy or those of a contentious nature without firstreferring the matter to myself. (‘Caretaker Conventions and

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other Pre-Election Practices in Australia’ Department ofPrime Minister and Cabinet Annual Report 1986/87: 40.)

By 1961, caretaker conventions had becomeestablished practice in the Federal Government.

Since then, all States and Territories have adoptedcaretaker conventions, apart from Tasmania,where they are under preparation (Table 2).


Caretaker conventions have only recently beenformally recorded in Western Australia. Theprocedures for the operation of caretakergovernments were set out by two Circulars toMinisters in 1993. In common with the caretakerpractices of other States, these are conventions andhave no legislative basis. Although not formallystated, the Premier in consultation with theGovernor has the final decision over whether theactivities of government are in breach of theconventions.

The Western Australian caretaker conventions areamongst the most extensive in Australia.Guidelines are detailed on the appointment ofstaff, policy development, policy announcements,the operation of Cabinet, the activities ofgovernment departments, the fate of legislationand a formal consultation process between theOpposition and government departments duringthe caretaker period. Although the WesternAustralian conventions are extremelycomprehensive, significant gaps exist. In addition,many of the terms and guidelines present in theconventions lack definition.


3.1 Duration of the Caretaker Conventions

In Western Australia, as with all States andTerritories save the Australian Capital Territory,conventions advise that government assumes acaretaker role from the date of the issuing of thewrits for the general election following thedissolution of the Legislative Assembly. Problemsmay occur when a delay exists between thedissolution of the house, or the last sitting day of

the house, and the announcement of the generalelection, especially in the case of a conjointelection. This may allow the government, for ashort time, to operate free from accountability toParliament as well as observance of the caretakerconventions (Table 1).

Only the Queensland caretaker conventionsrecognise that these situations may occur, andsuggest care should be taken during these periods.In the case of the Australian Capital Territory,caretaker conventions come into effect 36 daysimmediately prior to polling day. New SouthWales recognises that such an approach is onlyfeasible when Government is in office for a fixedterm.

Throughout Australia, governments continue tooperate in a caretaker mode until the electionresult has been determined, which may or may notrequire the first meeting of the new Parliament tosettle any uncertainties. This can leave asubstantial post-election period during which acaretaker government continues to operate.

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which may be politically contentious, during thecaretaker period. They recommend that majorproject approvals within government programsshould be deferred by Ministers unless there isappropriate consultation with the Opposition. Thecommencement of major new policy initiativesshould be avoided because they may bind anincoming government and limit its freedom ofaction. There may be difficulty in determiningwhat is a major new policy initiative.

The New South Wales caretaker conventionsadvise the government to avoid entering intomajor contracts or undertakings which have notpreviously been announced or for which tendershave not previously been called. This presents theproblem of the management of government policyshortly before the formal commencement of thecaretaker period. The timing of thecommencement of the conventions can have asignificant influence upon the volume ofgovernment business and advertising prior to theannouncement of the election.

Commencing the implementation of newprograms or policies prior to the dissolution ofParliament may minimise controversy. Outside thecaretaker period, commencing the implementationof major policies does not limit them being usedas election inducements. This again raises thequestion of when the caretaker period shouldcommence.

Important Issues

• What types of policies should thegovernment be permitted to introduceduring the caretaker period?

• What constitutes a major initiative?

• Who should determine whether or not apolicy is a major initiative?

• Should any progress be made during thecaretaker period towards theimplementation of major new policyinitiatives which were announced priorto its commencement?

Important Issues

• Should there be rules about governmentactivity during the caretaker period?

• If caretaker conventions are to apply,when should they commence; when ageneral election is called, whenParliament is dissolved, or at anothertime?

• Would an informal time period be moreeffective than setting a strict time limitto the caretaker conventions?

• When should the caretaker conventionscease to operate?

3.2 Notification of Conventions

No formal procedures exist in Western Australiato cover the official notification of Ministers andDepartmental Chief Executive Officers (CEOs) ofthe commencement and content of the caretakerconventions. In Queensland and South Australia,the Premier is responsible for writing to allMinisters summarising the conventions. Thisoccurs directly following the announcement of theelection. In the case of the Commonwealth andVictoria, this can occur prior to the announcementof the general election.

Important Issues

• Who should notify CEOs of the onsetand the content of the caretakerconventions?

• When should Ministers and CEOs benotified of the onset and the content ofthe caretaker conventions?

3.3 Policy Development and Implementation

The Western Australian caretaker conventionsadvise governments to avoid entering into majorcontracts or undertakings, including commitments

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3.4 Policy Announcements and ElectionPromises

The difference between a policy announcementand an election promise is difficult to determine,especially in the caretaker period. The WesternAustralian conventions are concerned with thetaking of new decisions not their announcement.By contrast the Commonwealth conventionsrecommend if the decisions concern significantinitiatives they should be announced in advance ofthe caretaker period to avoid controversy.

In regard to election promises, with the exceptionof the Northern Territory and New South Wales,all Australian caretaker conventions specificallyexempt new policy promises which the governingparty may announce as part of its electioncampaign. This reflects how the conventions areintended to manage government business duringthe caretaker period and not curtail the electoralactivities of political parties.

Important Issues

• What distinction, if any, should there bebetween a policy announcement and anelection promise?

• Should there be a restriction on theannouncement of new policies or therestatement of existing policies duringthe caretaker period?

3.5 The Operation of Cabinet During theCaretaker Period

While no longer responsible to Parliament duringthe caretaker period, the Cabinet is still required toadminister the government until a new Parliamentis elected. This may require Cabinet to meetduring the caretaker period. There are fewguidelines on how the business of Cabinetmeetings at this time should be conducted. TheWestern Australian conventions allow the Cabinetto continue meeting during the caretaker period,providing it considers only necessary and routinematters of government administration.

Other States are more specific in theirrequirements. The Commonwealth Cabinet maymeet during the period only if it is necessary forthe normal maintenance of government business.In Queensland and South Australia it is usual fortheir Cabinets to meet shortly before thedissolution of Parliament to clear outstandingbusiness. The Northern Territory is the soleexception, as its conventions prohibit Cabinetfrom meeting during the caretaker period unlessexceptional circumstances dictate otherwise.

The proper protection and storage of publicrecords is an important aspect of open andaccountable government. The improperdestruction of public documents may occur duringan election period if a government recognises thatit may not be returned. None of the caretakerconventions studied contained provisions for theproper storage of important governmentdocuments.

Important Issues

• Should Cabinet continue to meet duringthe caretaker period?

• If so, what business should Cabinet bepermitted to discuss during the caretakerperiod?

• Should caretaker conventions containprovisions for the proper storage ofgovernment documents?

3.6 Appointments to the Public Service

The government may have to decide upon theappointment or promotion of senior members ofthe Public Service during the caretaker period. Anumber of senior appointments may requireconsideration, depending upon the timing of theelection. Such appointments have the potential tocreate political controversy if handled incorrectly.There are also so-called term-of-governmentemployees, who are employed under contracts

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which expire at the end of the term of thegovernment.

Western Australian conventions providesubstantial guidelines for the appointment of staffduring the caretaker period. They advise thatsenior appointments which commence afterpolling day should not be made at this time. Inaddition, senior appointments which take effectafter the dissolution of Parliament, should bedeferred until after the election.

The caretaker conventions qualify further theseappointments, advising that where the properfunction of an agency requires a senior position tobe filled, this should be done either with a short-term contract or made on an acting basis. Inaddition, no action in relation to existing contractsof employment should proceed during this period.Where contracts of employment fall due, theexisting contract should be extended for a periodof no more than three months. This allows anincoming government to review the decision.

Western Australia and South Australia are theonly States with comprehensive guidelinesconcerning staff appointments, although theCommonwealth conventions add an importantqualification. Where a longer appointment isnecessary, or where a minimum or fixed term isprescribed, there is often consultation with therelevant Opposition spokesperson.

The South Australian conventions suggest noappointments be made to boards, committees orsenior executive positions during the caretakerperiod. Ministerial conventions in the UnitedKingdom advise simply that at all times, both inand out of the caretaker period, Ministers have aduty to ensure that influence over appointments isnot abused for partisan purposes.

Important Issues

• Should permanent senior appointmentsbe made during the caretaker period?

• If so, how should these appointments bemade, and on what basis?

• Should contracts of employment berenewed during the caretaker period?

• What should happen to term-of-government contract employees duringthe caretaker period?

3.7 Consultation Between the Opposition andthe Public Service

Opposition spokespersons may wish to obtaininformation concerning their election policiesduring the caretaker period. This creates a need forguidelines for consultation between Oppositionspokespersons and the Public Service. Theseformal consultation procedures need to beindependent of government and yet remainaccountable.

In this area Western Australia has one of the mostcomprehensive sets of guidelines. Firstly,consultation can only be initiated by theOpposition spokesperson making a request to theappropriate Minister. The Minister must notify thePremier in writing of the request and whether ithas been agreed. Departmental officials arerequired to inform their Ministers of whendiscussions are to take place.

Secondly, officials are not authorised to discussgovernment policies or give opinions on politicalmatters. The discussions may only include theadministrative and technical practicalities andprocedures involved in the implementation ofOpposition policies.

Thirdly, departments are to be represented in thediscussions by their CEO and appropriate officerswith relevant expertise. The details of thediscussions are confidential, although Ministersare entitled to seek general assurances fromofficials on whether discussions remained withinagreed purposes.

Fourthly, as part of the process of preparing theway for a potential change of government,departments may, on request, prepare generalbriefing papers to present to spokespersons on theimplications of their policies. Any requests which

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involve an unreasonable amount of work may berefused.

Important Issues

• Should Opposition spokespersons bepermitted to consult with the PublicService during the caretaker period?

• Should the officials involved in theconsultation remain accountable to thegovernment and on what basis?

3.8 The Role of Public Servants

The Western Australian conventions advise thenormal business of government should continueduring the caretaker period. Departments shouldcontinue to avoid partisanship and maintain theimpartiality of the Public Service.

Ministers are encouraged to sign only a minimumamount of correspondence, with CEOs takinggreater control over the administration of theirdepartments during the caretaker period. Thisraises the problem of the accountability of CEOsand their departments, and what their relationshipshould be with their Ministers during the caretakerperiod.

The Commonwealth conventions allow Ministersto request factual information from theirdepartments. Ministers may also ask relevantdepartments to cost Government and Oppositionelection proposals. They may not ask departmentalofficials to conduct election campaign activities orcomplete tasks which may have a politicalbearing. Government resources should not bedirected toward supporting a particular politicalparty. The conventions also provide there shouldbe no expenditure of public funds on electioncampaigning. If such requests are made, officialsmust bring them to the attention of their CEO.

The conventions advise that departmental officialsshould not voluntarily carry out electoral activitiesfor candidates or members using official resourcesor time. Nor should they use their position orresources to support a political party. Departments

should not take any action which might cause aMinister to breach the caretaker conventions.

By convention in the United Kingdom Ministershave a duty at all times to refrain from asking orinstructing civil servants to engage in activitieslikely to call into question their politicalimpartiality or give rise to the criticism thatofficers paid from public funds are being used forparty political purposes.

Important Issues

• Should Ministers be prohibited fromdirecting public servants to carry outelectoral or political activities?

• What role should term-of-governmentcontract employees in Ministerial officesbe permitted to play during the caretakerperiod?

• How should CEOs be made accountableduring the caretaker period?

• Should Treasury be permitted to costGovernment and Opposition electionpolicies, and who should pay for theseservices?

• Should the Opposition be permittedsimilar access to the Treasury as theGovernment?

• To what body should breaches of thecaretaker conventions be reported (eg,Auditor General, Official CorruptionCommission etc)?

• How should breaches of the caretakerconventions be dealt with?

3.9 Legislation During the Caretaker Period

Following the dissolution of Parliament, there isno means of introducing or passing newlegislation. Nevertheless, the government’slegislative program may be unfinished and there

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may be legislation in different stages ofcompletion, especially if a snap election is called.

The Western Australian conventions advise thatbills which have been introduced but not yetpassed will lapse upon the dissolution ofParliament, as will bills which require RoyalAssent. It is the practice in New South Wales,Queensland, and South Australia for bills whichhave been passed by Parliament to be assented toby the Governor and proclaimed if necessary priorto the dissolution of Parliament. Both Queenslandand South Australian conventions advise againstthe proclamation of any legislation during thecaretaker period.

Important Issues

• When should legislation which has beenpassed by Parliament prior to thecommencement of the caretaker periodbe proclaimed?

• Should orders, by-laws and regulationsbe subject to the same restrictions asother legislation?

3.10 The Final Decision on GovernmentActivities During the Caretaker Period

The Western Australian caretaker conventions aresilent about who should determine whether or nota government activity is permitted under thecaretaker conventions. All other Australianconventions advise that adherence to theconventions is ultimately the responsibility of thePremier. If Ministers are in doubt, they arerequired to raise the matter with the Premier.

This provides no effective means ofaccountability, because there is no guarantee thePremier will abide by the conventions. There is nomethod of ensuring government will follow thepractices outlined in the caretaker conventions. Inaddition, there are no penalties which can beinvoked if a government violates the conventions.

While it is important that government be managedeffectively during a period where Parliament

cannot act as a check upon the executive, it isimportant to encourage government practices toremain within the spirit of the conventions duringthe caretaker period. Accountability may be opento doubt because there is no supervisory body,other than the Governor.

Important Issues

• Should the government remainaccountable during the caretaker period?

• If so, what should be done to ensureaccountability?

• Should an independent body (such as theAuditor-General or the Public SectorStandards Commission) ensurecompliance with the conventions duringthe caretaker period?

• If so, how and when should this bodyreport?

3.11 The Legal Standing of the CaretakerConventions

Maintaining the accountability of a caretakergovernment is difficult because the conventionshave no basis in law. As a result, any breach maynot be challenged in court. Without some legalbasis it may be difficult to maintain a balancebetween effective management of government andaccountability of the executive during thecaretaker period. A legislative basis withappropriate penalties may have the additionalbenefit of giving the electorate confidence in theadministration of government during the caretakerperiod.

While giving the conventions a legal basis willensure the Government, Opposition, and thePublic Service are aware of their rights andresponsibilities, it may attach a degree ofinflexibility to the maintenance and administrationof government during the caretaker period. Afurther difficulty may be in the speed of reportingany breach of the caretaker conventions and how

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the conventions can be enforced once acontravention has been detected. A final problemmay be in determining what penalties should beimposed on members of parliament and publicservants who breach the conventions.

Important Issues

• Should the caretaker conventions becodified in legislation?

• If so, what provisions and penaltiesshould the legislation contain?

SPECIFIED MATTER 23REGULATING GOVERNMENTADVERTISING & TRAVEL

1. INTRODUCTION

Originally the Parliament intended theCommission on Government examine SpecifiedMatter 23, which reads:

23. The desirability of regulating:

(a) government advertising during an election period;and

(b) travel by persons in or connected with thegovernment during an election period.

In the course of developing the scope of itsenquiries it became clear to the Commission onGovernment that an investigation into allgovernment advertising and travel was required.Specified Matter 23 was therefore expanded toinclude an examination of government advertisingand travel at all times.

The Commission considered it would not be in thepublic interest to restrict an investigation ofgovernment advertising and travel to electionperiods. Expenditure on government advertisingand travel involves public funds and occursthroughout the life of a government and not justduring election periods. The potential for corrupt,illegal and improper conduct by public officials is,likewise, present inside and outside of an electionperiod.

The key element of government accountability is aclear and justified explanation of the use of publicfunds. The regulation of government advertisingand travel strengthens accountability. Thisregulation is even more important during anelection campaign as political parties compete towin government. The government’s behaviourduring an election campaign should be open andaccountable to prevent the use of public monies tofund a party’s election campaign.

Problems can arise in distinguishing governmentinformation from political propaganda. Thedifficulty arises from the inherently partisannature of government. Elections are a contestbetween political parties which use advertising topromote themselves. Advertising is an essentialmethod of information dissemination in moderndemocratic government. Governments have a rightand a duty to inform the public of policydevelopments and individual entitlements.Governments must be accountable for how theypromote their policies.

Government departments use advertisingcampaigns to inform the public about benefits,services, rights and obligations. While thesecampaigns provide useful information to citizens,they also present an opportunity for promotionalparty-political material. The difficulty for anyregulatory scheme is in identifying the line thatshould be drawn between using public funds forinforming the people and using them to promote apartisan position.

Government funded travel is a necessary part ofpublic administration. Ministers, Members ofParliament and public servants are required toattend activities as part of their duties. Travelbefore and during an election period bygovernment officials involves possible use ofgovernment resources or public funds for party orself-promotion. Regulation could help preventpublic officials travelling on government funds forcampaigning purposes and ensure accountability.As with government advertising, there is adifficulty in distinguishing between travelling onofficial duties and travelling to gain partisanadvantage. While travel during the election periodis governed by caretaker conventions, substantial

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travel entitlements are available outside of thecaretaker period.


2.1 Electoral Amendment (Political Finance)Act 1992 (PFA)

In 1992, the Western Australian Parliament passedthe Electoral Amendment (Political Finance) Act1992 (PFA). Section 191B prohibits the printing,publishing or distribution of any matter for or onbehalf of the government during a period sixmonths prior to the end of a Legislative Assemblyterm. If an early election is called the relevantperiod is taken from the issue of the writs to theclose of the polls. The section lists certain publicinformation notices that are exempt. The penaltyfor a contravention of the section is a fine notexceeding $1,000 or up to six monthsimprisonment.

The section was interpreted as stopping all publicsector advertising during an election period. Thiswas considered impractical and not in the publicinterest. The Act was therefore not proclaimed.

Section 191C prohibits prescribed air travel duringan election period. There are exemptions for thePremier and Leader of the Opposition or theirappointed representatives.

2.2 Government Circulars

Despite the Act not being proclaimed, Circular toMinisters and Chief Executive Officers No 1/93instructed agencies to adhere to the spirit of theunproclaimed Act. Ministers and governmentmembers were required to follow the advertisingand travel restrictions set out in the PFA. On theissue of advertising the circular states:

All Government advertising, except that commissioned bythe State Electoral Commission, is to be deferred from thedate of issue of the writs for the general election until theclose of polling on the designated Election Day.

Exceptions could be granted on application to theExecutive Director of the Department of StateServices in a number of specified cases. Withregard to travel the circular states:

Apart from normal travel to and from and within their ownelectorates, no Minister (or Government Member ofParliament) may travel by air at Government expense.

The Premier and Deputy Premier are exempt fromthis instruction.

In the Circular to Ministers No. 2/93 on CaretakerGovernment Conventions and other Pre-ElectionPractices, entitlements to travel under the ImprestSystem are suspended:

... for the period between the issue of writ for a general orconjunct election on the day fixed by those writs for takingof the poll ... no Minister, or Government Member ofParliament, may travel by air at Government expense exceptthe Premier and Deputy Premier.

2.3 The Advertising Standards Council(ASC)

The Advertising Standards Council (ASC) is anindependent organisation funded by theadvertising industry which hears complaints frommembers of the public about advertisements inany medium. It has a Code of Ethics against whichit judges advertisements following receipt of acomplaint. If the complaint is upheld the membersof the Media Council of Australia agree to removethe offending advertisement. Although designed tocope with private sector commercial advertising,the ASC can and does hear complaints aboutgovernment advertising.


3.1 Government Advertising

3.1.1 Regulating Government Advertising

An argument can be advanced to supportgovernments advertising their policies anddisseminating information about laws passed byParliament. Regulation becomes an issue if thereis evidence of governments using public money topersuade, rather than inform.

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Government running a pre-election advertisingcampaign (Bulletin, 19/9/95: 14).

Important Issues:

• Should there be clear definitions ofgovernment information services andadvertisements promoting the politicalprofile of the government or ministers?

• Should pre-election advertising beregulated?

• If so, who should regulate it?

3.1.3 Types of Regulation

3.1.3.1 Legislative Regulation

Section 191B of the PFA prohibits certaingovernment publications in the final six months ofthe Legislative Assembly’s term. The CrownSolicitor provided the Premier with advice inJanuary 1993 that this section of the PFA wouldcause considerable public disruption, resultingfrom the government’s inability to publish certaingovernment material such as Tertiary EntranceExamination results. This is the main reason whythe PFA remains unproclaimed.

Section 191B of the PFA was designed to preventgovernments using public funds to run earlyelection advertising campaigns. It does not haveany influence over government advertising duringany other stage of the term of a government. TheNew South Wales Parliament has proposedlegislation which will monitor governmentadvertising at all times.

The Government Publicity Control Bill 1992(NSW) was introduced into the NSW Parliamentby the Opposition on 6 March 1992. The objectsof the Bill were:

(a) to ensure that, as far as possible, public money is notexpended on government publicity for a partisanpolitical purpose; and

Important Issues

• Is regulation of government advertisingnecessary?

• Is there any place for self promotionaladvertising by government?

3.1.2 Government Advertising andGovernment Information

One of the major problems in regulatinggovernment advertising is in distinguishingadvertising for disseminating information frompolitical propaganda. Few definitions of eitherexist.

In the Report by the Legislation Committee Uponthe New South Wales Government PublicityControl Bill 1992 it was stated that:

... whilst (Government Members believe) advocacyadvertising is appropriate, the party politicisation ofadvertisements with Ministers’ photos and signatures is not,nor is the use of extensive Government advertisingcampaigns in the lead-up to elections ... (LCUGPCB,1993: 26)

Any scheme attempting to regulate governmentadvertising during an election period faces theproblem of defining the period involved. If itbegins with the issue of the writs and ends at theclose of polls, governments can avoid regulation ifthey begin election advertising before the periodbegins.

In his written submission to the Committee on theGovernment Publicity Control Bill 1992, the NewSouth Wales Electoral Commissioner said:

... it has not been uncommon for public criticism to be madeof Governments placing advertising material of this nature inperiods leading up to an election and actually during anelection period. (LCUGPCB, 1993: 33)

Government members of the Committee noted thatthe Federal Government ran Medicareadvertisements several days prior to theannouncement of the 1993 Federal Election. Morerecently there has been allegations of the Federal

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(b) to constitute a committee to scrutinise, and formulateguidelines for, government publicity which appears tothe committee to have the capacity or be likely to havethe capacity, in whole or in part, of being used for thatpurpose.

The Bill also defined the terms ‘governmentpublicity’ and ‘government publicity for politicalpurposes’ as any advertisement or promotion,funded by public money, which appears to havethe capacity to influence public support of apolitical party. The Bill does not establish anycriteria by which a regulatory body could makesuch an assessment.

The proposed regulatory body, the GovernmentPublicity Committee, was to consist of theAuditor-General, the Electoral Commissioner andthe Ombudsman. This proposal was rejected bythe Electoral Commissioner and the Auditor-General who felt it might compromise theirpolitical independence. The Ombudsman refusedto stand on the Committee unless it wasadequately funded.

The Government Publicity Control Bill 1992(NSW) was not passed and lapsed. In 1995 it wasre-introduced with the same title. It remains on thelegislative agenda of the New South WalesParliament.

The issue of regulating political advertising withlegislation has been the subject of controversy atboth the Commonwealth and State level. The HighCourt in the Australian Capital Television Case1992 declared the Political Broadcasts andPolitical Disclosures Act 1991 (Cwlth)unconstitutional as it was in breach of the impliedconstitutional right to freedom of speech. Thisdecision may affect the proposed NSW legislation.The Commonwealth Electoral Act 1918, throughs.311(a), imposes a regulatory scheme fordisclosure of departmental expenditure onadvertising matters in annual reports. This allowsexamination of what amount of public funds isspent but the information may be available too lateto be an effective check on government behaviour.

Important Issues

• Is legislative regulation the appropriatemethod of regulating governmentadvertising?

• Should the relevant provisions of thePFA be proclaimed?

• Should there be legislation to regulategovernment advertising outside electionperiods?

• Should Western Australia establish abody to regulate government advertisingduring the election period?

• Who should be on it?

• What should it do, and what powersshould it have?

• Should a legislative scheme definegovernment information andadvertising?

• Is s.311(a) of the CommonwealthElectoral Act 1918 sufficient regulation?

3.1.3.2 Guidelines

Guidelines are another means of controllinggovernment advertising. They are easier to drawup than legislation but they lack its legal force.

New Zealand has guidelines for governmentadvertising and publicity. They set out three broadcriteria which all Government departmentalpublicity should meet. The advertising should be:

1. accurate, factual and truthful;

2. fair, honest and impartial; and

3. lawful and proper.

In New Zealand the Auditor-General investigatescomplaints about political advertisements. Theshortcomings of the New Zealand guidelines

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concerning the question of government politicaladvertising are mentioned in evidence given in1992 to the NSW Publicity Control Committee byMr McCormack, Federal Director and ChiefExecutive Officer of the Advertising Federation ofAustralia:

I think that the Auditor-General (of New Zealand) has mostimproperly interposed his view on valid, legitimatecommunication of an elected Government. The Governmentwas elected to carry out a policy, and subsequently launcheda policy while it was in Government ... I would say it isvirtually impossible not to have some political - in the sensein which this community understands the word - overtones ofthe presentation of Government policy. (LCUGPCB,1993: 24)

The British Central Government Conventions onPublicity and Advertising establish four basic teststhat Government Publicity must pass:

1. The subject matter must be relevant togovernment responsibilities.

2. Content, tone and presentation should not be‘party political’.

3. Distribution of unsolicited material should becarefully controlled.

4. Costs should be justifiable.

These Conventions apply to both campaign andnon-campaign (public service type) publicity.

In April 1994 the Parliamentary Committee on theElectoral and Administrative Commissionoutlined a set of guidelines for Queenslandgovernment advertising. These guidelinesestablished the right of the government to ‘usepublic funds for publicity and advertising toexplain policies and programs ...’ (ParliamentaryCommittee on EARC, 1994, Appendix D1). Theyfurther emphasised that all government publicityand advertising should be fair and non-partypolitical. At present the Queensland government isredrafting these provisions.

The Commonwealth Department ofAdministrative Services administers the Office ofGovernment Information and Advertising (OGIA).The OGIA established guidelines which defineinformation activities and stress the importance ofall people being aware of government policies andprograms. Guideline 2.6 tries to ensure all

advertising should be as impartial and complete aspracticable (OGIA, 1995, 2). The guidelines makeno distinction between election and non-electionperiods.

Important Issues

• Are guidelines on governmentadvertising sufficient to ensure fairnessduring election periods?

• Should guidelines on governmentadvertising be broad or prescriptive?

• Are the Western Australia guidelinesregulating government advertising,explained in the Circular to MinistersNo’s 1 and 2 of 1993, sufficient?

3.1.3.3 Private Industry Regulation

The Advertising Standards Council (ASC) has thepower to ‘receive complaints about advertisementspublished and/or broadcast in Australia and shalladjudicate on those complaints and shall informthe Media Council of Australia of the results of itsadjudications.’ (ASC Charter: 6). The ASC makesdeclarations according to the Advertising Code ofEthics. These declarations are supported by theMedia Council of Australia.

The ASC can act on all manner of complaintsincluding the use of publicly funded advertisingfor party purposes. The ASC’s policy is to allow awide latitude to party promotional advertisinggiven that the Council is not a censor of opposingviews and supports the principle of freedom ofspeech.

Accordingly, the ASC will not intervene in partypolitical advertising unless the advertisementunduly plays on fear or there is a clearmisstatement of fact which makes theadvertisement false and misleading. A fact canonly relate to the past or the present.

The ASC faces time constraints in hearingcomplaints during election campaigns. The ASCcan only investigate complaints after an

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advertisement has been released. The Councilmust make an adjudication quickly if it is toremove an advertisement that contravenes theCode of Ethics.

The ASC has no legal standing and relies on thegoodwill and agreement of the Media Council ofAustralia. Despite this, the ASC has heardcomplaints about political advertisements.

Important Issues

• Should the regulation of governmentadvertising be left to an independentindustry-related body such as the ASC?

• Should the ASC’s Advertising Code ofEthics include a provision whichprohibits the publishing or broadcastingof promotional political material?

3.1.4 Truth in Political Advertising

Government advertisements which containmisleading or untrue statements could be deemedimproper. Section 329(1) of the CommonwealthElectoral Act 1918 makes it an offence to print,publish, distribute or broadcast during an electionperiod any matter likely to ‘mislead or deceive anelector in relation to the casting of a vote’. Thereare other sections in the Commonwealth ElectoralAct 1918 which also regulate electoral advertising.

The Senate passed amendments to theCommonwealth Electoral Act 1918 in September1995 to ensure truth in political advertising, withthe intention of reducing the opportunity forimproper conduct by public officials in creatinggovernment advertisements. The amendmentshave yet to be debated by the House ofRepresentatives.

Important Issues

• Is the Commonwealth Electoral Act 1918sufficient to ensure adequate regulationof government advertising and shouldsimilar legislation be adopted in WesternAustralia?

• Should Western Australia consider truthin advertising provisions similar tothose discussed by the Senate?

• Should truth in advertising provisionsapply at all times or only duringelections?

South Australia has had truth in advertisingprovisions since 1985. After the last SouthAustralian general election the State Secretary ofthe South Australian Labor Party was successfullyprosecuted under s.113 of the Electoral Act 1985(South Australia) for authorising misleadingelection advertisements. The section reads:

113 (1) Where-(a) an electoral advertisement contains a statement

purporting to be a statement of fact; and(b) the statement is inaccurate and misleading to a

material extent, a person who authorized, causedor permitted the publication of the advertisementshall be guilty of an offence.

The penalty for contravening s.113(1)(a) or (b) is$1,000 for an individual or $10,000 for a bodycorporate. The defendant is excused if he or shetook no part in determining the contents of theadvertisement and could not reasonably beexpected to have known the statement wasinaccurate or misleading.

Important Issues

• Should Western Australia consider truthin advertising provisions similar to thosein the Electoral Act 1985 (SouthAustralia)?

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• Should the penalty for any breach oftruth in advertising provisions involve afine, jail term or loss of seat for aconvicted candidate?

3.2 Government Travel

3.2.1 Travel by Members of Parliament

Members of Parliament representing electoratesthat are served by regular air services are entitledto unlimited air travel to and from Perth andwithin their electorate. Each Member ofParliament is also granted a Railways of Australia‘Gold Pass’. This provides Members with freetravel on Western Australian and AustralianGovernment railways, excluding travel within themetropolitan area.

An Imprest (money advance) System for travel byMembers of Parliament has been in operationsince February 1980. It is administered by theMinistry of the Premier and Cabinet. During thelife of each Parliament, a Member is credited witha specified amount for travel purposes. Thisamount is cumulative over the life of twoParliaments. The amount for the Parliamentcommencing in 1993 was $15,691. This moneymay only be used to meet the cost of fares fortravel by a Member and their partner. The method,class and destination of travel within Australia isat the sole discretion of Members. The purpose ofall Imprest-funded travel must be related tolegitimate parliamentary and/or electorateresponsibilities and not for private or commercialreasons. Members paying for overseas travel usingtheir Imprest allowance must certify that suchtravel is directly connected with theirparliamentary responsibilities. Each member isalso entitled to a travelling allowance when awayfrom Parliament on parliamentary business.

In 1991 the Criminal Justice Commission (CJC) inQueensland undertook a review of the possiblemisuse of parliamentary travel entitlements byMembers of that State’s Parliament. TheCommission found that unclear travel guidelinesand poor accountability procedures had allowedsome Members of the Queensland Parliament to

misuse their travel expenses. The CJCrecommended tightening the guidelines to makethe Clerk of the House the accountable officer,requiring all Members claiming travel expenses toapply to the Clerk and certify that the travel wasfor parliamentary business, indicate the nature andpurpose of that business and provide appropriatedocumentary evidence that travel was undertaken.

These recommendations were adopted by theQueensland Parliament. In addition, theParliament provided non-metropolitan Memberswith a specified number of free flights to and fromtheir electorates to Brisbane. The general spirit ofthe CJC’s recommendations was instilled inguidelines. They established a limit to the amountof travel which Members may undertake at publicexpense, as well as providing a framework whichdemands strict reasons for publicly funded travel.Under the present system in Western Australia nosuch framework exists. Indeed, WesternAustralian Members are entitled to obtainexpenses and fare prior to undertaking the travel.This raises the possibility of further misuse of thetravel entitlements system.

Important Issues

• Should travel by Members of Parliamentbe regulated?

• Who should manage the Imprest Systemfor travel expenses?

• What should be the travel entitlementsfor non-metropolitan Members to enablethem to effectively service theirelectorates?

• Who should determine travelentitlements, and how should they beregulated?

• Should there be a definition ofparliamentary business in the travelregulations?

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3.2.2 Travel by the Premier, the Leader of theOpposition and Ministers

Government Ministers, the Premier and the Leaderof the Opposition are entitled to significant travelallowances over and above those to which they areentitled as ordinary Members. The Premier andMinisters are allocated a government car forofficial and appropriate personal use.

In addition to their Imprest entitlements, Ministersare allocated unlimited travel on any scheduled airservice within Australia. Ministers are granted aircharter and transport hire at public expense forofficial purposes. Overseas travel requires theprior approval of the Premier.

The Leader of the Opposition receives unlimitedtravel on scheduled air services within Australiafor official purposes only. The Leader is alsoentitled to the equivalent of one round-the-worldair ticket during the life of each Parliament.

In Queensland, the Leader of the Opposition ispermitted limited travel on scheduled air serviceswithin the State provided the flights are necessaryfor parliamentary business. The Leader of anyother recognised political party is also granted tenreturn flights within Queensland to attend toParliamentary business. The Leader of theOpposition is entitled to one overseas trip perParliamentary term. All travel is governed by thesame accountability regulations mentioned earlier.

Important Issues

• When should a Minister be allowed totravel at public expense?

• Should there be a definition of officialpurposes for Ministerial air travel?

• Should Ministerial travel require thesame degree of accountability as travelby ordinary Members?

3.2.3 Travel by Partners of Members ofParliament

The partner and dependants of Western AustralianMembers of Parliament are also provided withtravel entitlements. Each Member’s partner andany dependant children are each allocated fourreturn flights on scheduled air services betweenthe Member’s electorate and Perth or within theelectorate each year. In addition, each Member’spartner is permitted free rail travel between theelectorate and Perth and within the electorate, aswell as one month’s worth of travel on anyAustralian Government railway. The partner andany dependant children are also granted two freereturn trips per year on any Western AustralianGovernment railway. They are not allowed totravel free on the metropolitan rail system.

The partner of each Minister is permitted oneintrastate and one interstate trip on scheduled airservices each year, as well as 12 extra return tripsper calender year between their partner’selectorate and Perth or within the electorate.Dependent children are granted ten of these trips.This travel is in addition to their entitlements asthe partner and dependants of an ordinaryMember. The partner of the Leader of theOpposition receives the same privileges, and ispermitted to accompany the Leader on his/herround-the-world-trip. This will not be funded bythe Government but can be paid for using theLeader’s Imprest account.

The CJC found there was significant abuse of thetravel allowance system in Queensland byMembers and their partners. Travel entitlementswere substantially restricted following its report.Rail travel privileges remained similar to thoseused in Western Australia. The cost of a partner’stravel could only be paid out of a Member’s travelallocation if the travel was for parliamentarybusiness and the Member’s partner had beenformally invited to attend a function or the partneraccompanied the Member to a significantcommunity or parliamentary function. TheQueensland requirements are far more stringentthan those in use in Western Australia.

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report by the Office of the Auditor General hashighlighted problems with public sector travel. Forexample, it has been reported that insufficienttravel policies and guidelines in some departmentshave encouraged inaccurate reporting ofgovernment travel details. The Auditor Generalrecognised that agencies are now generallyobtaining the appropriate approvals for travel,although greater efficiency could be achieved(OAG report no. 7, September 1995: 4). Inparticular, the Office recognised there was asignificant opportunity for savings in thedepartmental use of airline frequent flyer pointprograms, as well as in rectifying the misuse offrequent flyer points accrued on official businessbeing used privately.

Important Issues

• What travel entitlements, if any, shouldpublic servants have?

• How should this travel be regulated?

• On what basis should a public servant bepermitted to travel?

• How should public servants’ frequentflyer programs be managed?

3.2.5 Travel During A Pre-Election Period

Section 191C of the PFA prohibits Members ofParliament from ‘undertaking any prescribed airtravel at the expense of the State during therelevant period in relation to an election’. The Actalso lists a number of exceptions such as theentitlement of the Premier and the Leader of theOpposition to undertake travel. These provisionsare similar to those in Western Australia’scaretaker conventions, which state that:

Apart from normal travel to and from and within theirelectorates, no Minister, or Government Member ofParliament may travel by air at Government expense exceptthe Premier and Deputy Premier.

The Imprest system is also suspended for theduration of the caretaker period.

Important Issues

• Should public funds be used to pay fortravel by the partner and dependantchildren of Members of Parliament?

• If so, what travel allowances should bepermitted?

• Is it necessary to regulate travel byMember’s partners?

• If so, how should this be done?

3.2.4 Travel by Public Servants

Ministers have sole discretion as to whichministerial or departmental staff accompany themon intra/interstate and overseas travel. The Leaderof the Opposition has an allowance of $6,000 perfinancial year to meet the cost of fares andtravelling allowances for accompanying staff onofficial business. There are no other regulationsgoverning staff travelling with Ministers.

Interstate or overseas travel by officers of anyagency or department is subject to the approval ofthe responsible Minister. Intrastate travel requiresthe approval of the departmental chief executiveofficer (CEO). Any travel by the CEO is subject toMinisterial approval.

In 1993 the Western Australian Governmentestablished formal guidelines for the approval ofdepartmental travel. The guidelines advise thattravel should not be undertaken unless it is themost cost-effective means of obtaining theinformation required. Overseas travel should notbe undertaken unless Western AustralianGovernment employees overseas cannot carry outthe task. Attendance at interstate and overseasconferences and courses should be minimised andshould occur only if absolutely necessary.Departments are required to submit quarterlyreturns to Parliament outlining their travelexpenditure in order to maintain accountability.

While these guidelines appear comprehensive, andaccountability mechanisms are in place, a recent

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In the Cabinet Handbook for South Australia 1994the Caretaker Government Conventions and otherPre-Election Practices states it is an acceptedpractice in most jurisdictions that:

Ministers do not claim travelling allowance for the durationof the election campaign unless the travel (including airtravel) is primarily in connection with other ministerialduties. This convention also applies to members ofOpposition parties.

Important Issues

• Who should be allowed to travel atgovernment expense during the pre-election period, and on what basis?

• If Ministers travel for matters primarilyin connection with their ministerialduties, what measures, if any, should beput in place to prevent them fromelection campaigning once they havefulfilled those duties?

• Should term of government employees(Ministerial office appointees) bepermitted to travel with Ministers andcarry out election campaign activities?

3.2.6 Accountability and Government Travel

Since 1989, Members of the Western AustralianParliament have been required to certify that allapplications for overseas travel are connected withtheir parliamentary duties. If the overseas travel ispaid out of a Member’s Imprest entitlements, theMember must state the purpose and any privatecommercial components of the travel insubmitting their application to the Premier.

Imprest funded travel within Australia ‘must berelated to the legitimate Parliamentary and/orelectorate responsibilities of the Member ...’ andshould not be used for electoral campaignactivities. Any travel outside of the Imprestsystem, such as corporate funded travel andMinisterial travel, is not regulated by any control,save where they permit a Member to travel to and

from their electorate. The purpose of thesejourneys does not have to be disclosed.

Members of the Queensland Legislative Assemblyare required to certify to the Accountable Officerthat all publicly funded travel is primarilyconnected with parliamentary business.Definitions of parliamentary business are providedin the travel regulations. They are required toindicate in advance the nature and purpose of thatbusiness, and when claiming reimbursementprovide appropriate documentary evidence. Ifoverseas travel is proposed the procedures aresimilar, save that the Member is required toprepare a report to Parliament concerning theparliamentary business conducted while on thetrip. These safeguards are intended to ensure thesystem of travel allowances is not abused.

Western Australia has no similar system to certifyif government travel is primarily concerned withParliamentary and/or electorate business. Thismay be a serious deficiency in the system,allowing for possible abuse of both a Member’sordinary travel entitlements, the entitlements oftheir partner and dependants and the Imprestsystem.

Important Issues

• Are the present reporting requirementsfor travel expenses adequate?

• Who should ensure that publicly fundedtravel is used for Parliamentarypurposes?

• What criteria should be used todetermine if a trip by a Member, theirpartner, or a public servant should bepublicly funded?

4. SUMMARY

Caretaker Conventions

Western Australia has one of the mostcomprehensive set of caretaker conventions inAustralia. There are nevertheless areas which are

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not adequately covered in the conventions, andloopholes exist which can leave the caretakerperiod open to corrupt, illegal or improperconduct. Problems such as defining thecommencement of the conventions, providingstronger definitions of some of the terms used inthe conventions and stating who has the finaldecision over matters relating to the conventionsmay need to be addressed.

Perhaps the most substantial problem withWestern Australia’s caretaker conventions is thelack of legal recognition. With no legal basis therecan be no redress other than through the ballot boxif Members of Parliament break the conventions.There is no formal or legal method of preventingthe government from acting irresponsibly duringthe caretaker period when it is not accountable toParliament, save for its responsibility to theGovernor. This has the potential for creatingproblems in preventing corrupt, illegal orimproper conduct in government.

Government Advertising

Governments have a right and a duty to advertisetheir policies and programs thereby keeping thepublic informed. This is an essential component ofan open and accountable government and a key tothe elimination of opportunities for corrupt, illegaland improper conduct by public officials. Theclose relationship between political parties andexecutive government could mean governmentadvertising may become a means for party benefitrather than public information. The aim ofregulating government advertising is to ensurepublic funds are utilised only for governmentadvertising of an informative nature and not self-promotion of a political party.

There are no substantive measures to regulategovernment advertising during or outside anelection in Western Australia. Other jurisdictionsdemonstrate a variety of methods utilisinglegislative bodies and rules, broad departmentalguidelines or reliance on the advertising industryto regulate its government advertising work.

Government Travel

Members of the Western Australian Parliamenthave, in addition to what they receive under theImprest system, travel entitlements. Members areentitled to publicly funded travel in pursuit of theirparliamentary and electorate business, largely freefrom any form of accountability. Suchentitlements also extend to the partners anddependents of Members.

In recent years the Western AustralianGovernment has added formal guidelines fortravel by public servants. Increased accountabilityand measures such as quarterly travel returns toParliament have reduced opportunities to misusethe travel system. Although it has not been foundthat the travel entitlements system is defective,there may remain scope for corrupt, illegal andimproper conduct.

REFERENCES

Advertising Standards Council (1994) EighteenthReport Sydney

Blumler J.G., Gurevitch M. and J. Ives (1978) TheChallenge of Election Broadcasting Leeds:University of Leeds

Bradshaw, Kenneth and David Pring (1972)Parliament & Congress London: Constable & Co

Commonwealth Cabinet Handbook (1994)Canberra: Department of the Prime Minister &Cabinet

Criminal Justice Commission (1991) Report on anInvestigation into Possible Misuse ofParliamentary Travel Entitlements by Members ofthe 1986-1989 Queensland Legislative Assembly

Department of Prime Minister and CabinetAnnual Report 1986/1987.

Electoral and Administrative Review Commission(EARC) (1992) Issues Paper No. 19 Review ofGovernment Media and Information ServicesMarch 1992 Brisbane

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Griffith, J. A. G., Ryle, M. and M.A.Wheeler-Booth (1989) Parliament: Functions,Practices & Procedures Street & Maxwell:London

Hasluck, Sir Paul 1979 The Office of theGovernor-General Melbourne: MelbourneUniversity Press

Jamieson K.H. and K.K. Campbell (1992) TheInterplay of Influence, News, Advertising, Politicsand the Mass Media 3rd Edition Belmont:Wadsworth

Legislation Committee upon the GovernmentPublicity Control Bill 1992 (LCUGPCB) (1993)Report by the Legislation Committee upon theGovernment Publicity Control Bill 1992 Sydney:Legislative Assembly

Lindell, G. F. (1988) ‘Current Topics: ExecutiveActions and Appointments Following aDissolution of Parliament’ The Australian LawJournal 62: 321-322

Lloyd, C. J. and G. S. Reid (1974) Out of theWilderness: The Return of Labor Melbourne:Cassell Australia

Office of the Auditor General Western Australia(OAG) (1993) Public Sector Travel, CorporateCard, Main Roads, Properties, Mining RoyaltiesFinancial Administration and ManagementEffectiveness Examination Report No. 4 Nov 1993Perth

Office of the Auditor General Western Australia(OAG) (1995) Performance Examination PublicSector 1995 Travel, Corporate Card, CabchargeFacilities Report No. 7 September 1995 Perth

Office of Government Information andAdvertising (OGIA) (1995) Guidelines forAustralian Government Information ActivitiesPrinciples and Procedures Canberra: Departmentof Administrative Services

Parliamentary Electoral and AdministrativeReview Committee (1994) Report on GovernmentMedia and Information Services LegislativeAssembly Report No. 22 April 1994 Brisbane

Public Service Commission (1995) OfficialConduct: Guidelines on Official Conduct ofCommonwealth Public Servants Canberra: AGPS

Queensland Cabinet Handbook (1992) Brisbane:Cabinet Office

Senate Hansard (1987)

South Australian Cabinet Handbook (1994)Adelaide: Department of the Premier & Cabinet

Stevens, Bron and John Wanna (eds) (1993) TheGoss Government Promise and Performance ofLabor in Queensland Melbourne: Macmillan

The Parliament of the Commonwealth ofAustralia, (1976) Australian GovernmentAdministration: Report of the Royal CommissionParliamentary Paper No. 185/1976,Commonwealth Government Printer: Canberra

Van Raalte, E. (1959) The Parliament of theKingdom of the Netherlands London: The HansardSociety for Parliamentary Government

Walsh, Kerry-Anne (19 September 1995) Bulletin‘PM Splashes out for the Big Date’: 14

Whip, Rosemary and Hughes, Colin A. (eds)(1991) Political Crossroads The 1989 QueenslandElection St Lucia: University of Queensland Press

LEGISLATION

Commonwealth Electoral Act 1918

Electoral Act 1985 (South Australia)

Electoral Amendment (Political Finance) Act 1992

Government Publicity Control Bill 1995 (NSW)

Parliamentary Entitlements Act 1990(Commonwealth)

Political Broadcasts & Political Disclosures Act1991 (Commonwealth)

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CASES

Australian Capital Television Pty Ltd vCommonwealth of Australia (1992) 108 ALR 577;177 CLR 106

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intended to be exhaustive. Submissions mayaddress any other relevant matters.


SUBMISSIONS




FORMAT






ORare submitted as computer disks, preferablycompatible with WordPerfect for Windows 6.0a. (This is especially important for lengthysubmissions.)

PREFACE





This paper deals with Specified Matter 14concerning the most effective means of securingthe financial independence of Parliament so as toenable Parliament to undertake its business.

This paper identifies some of the issues whichmay be relevant to the Commission’s task andprovides background information. The issuesidentified and information provided are not

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CONTENT










CONTENTS

1. INTRODUCTION


2.1 The Budget2.2 Parliament’s Budget2.3 Accountability Requirements2.4 Financial Initiative of the Crown


3.1 Should Parliament have more Controlover its Finances?3.1.1 Arguments for the Financial

Independence of Parliament3.1.2 Arguments against the Financial

Independence of Parliament3.2 Options for Greater Financial control

3.2.1 The Parliamentary CommissionModel

3.2.2 The ParliamentaryAppropriation Bill Model

3.3 Unforeseen Expenditure3.4 Internal Structure of Parliament3.5 Managing Parliament’s Resources

4. SUMMARY

REFERENCES

APPENDIX 1

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administration. Previously, this task was carriedout by a government department.

In an attempt to gain greater financial control,other legislatures such as the AustralianCommonwealth Parliament, prepare their ownappropriation bill. While conflict can still occurbetween Parliament and the government over thecontent of the bill, the process allows Parliament ameasure of independence.

This paper examines Specified Matter No. 14which is:

14. The most effective means of securing the financialindependence of parliament so as to enable Parliamentto undertake its business.

The paper examines the following issues:

• whether Parliament should have more controlover its finances;

• options for greater financial control, such asthe parliamentary commission andappropriation bill models;

• ways of dealing with unforeseen expenditure;

• whether Parliament should be administrativelyrestructured; and

• managing Parliament’s resources.

Underpinning this Specified Matter is the coreissue of accountability. Although funded frompublic monies, Parliament does not comply fullywith the accountability measures required of otherpublic sector agencies. Its departments do notproduce annual reports or performance indicators,unlike those of the Federal Parliament, and itprovides little information on how it manages itsresources. In considering whether Parliamentshould have more control over its finances, itsaccountability to the public should also be kept inmind.

1. INTRODUCTION

Parliament’s central position in our politicalsystem has been diminished by executivedominance. This is a feature common to mostWestminster-derived legislatures, where thelegislative and executive branches of governmentare linked. A government is formed by the party orcoalition winning a majority of seats in the lowerhouse at a general election. As a result of itsmajority, a government can control the operationsof Parliament, including its funding. Thegovernment is responsible for managing theState’s finances. As Parliament is funded frompublic monies, the government determines itsannual budget allocation, as it does for any publicsector agency.

Some argue that Parliament is not a service of thegovernment and that the determination of theamount of funds needed for its operations shouldnot be solely in the hands of the government. TheWestern Australian Royal Commission into theCommercial Activities of Government and OtherMatters (WA Royal Commission) focussed onreasserting Parliament’s role. It believedParliament should operate with a greater degree ofindependence from the government, particularlyby having greater control over its finances. As theRoyal Commissioners warned:

For so long as the Parliament is financially subservient to theExecutive, the effective discharge of its responsibilities is atthe mercy of the Executive. (WA Royal Commission, 1992:II 5.2.3)

While it is unlikely that Parliament can ever befinancially independent, as the government isultimately responsible for managing public funds,many argue that it should have more control overdetermining and managing its resources. Atdifferent times, other parliaments, both inAustralia and overseas, have attempted to achievethis. For example, the House of Commons in theUnited Kingdom established a Commission in1978 to prepare the House’s financial estimates. Ameasure of its autonomy was reflected byTreasury having no formal role in the process.Similarly, the New Zealand House ofRepresentatives created a Parliamentary ServicesCommission in 1985 to manage Parliament’s

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2.1 The Budget

To spend public money, the government has togain parliamentary approval for its budget everyyear. The budget contains financial informationabout all government departments and agencies. Itdetails expenditure in the previous financial yearand spending estimates in the forthcoming one. In1995-96 the government’s total expenditure isexpected to be over $6 billion.

The government must allocate resources forservices across the whole public sector, such aseducation, health, police and housing. It does sowithin tight budgetary constraints, balancingcompeting priorities for government funds. Inaddition, the government not only appropriatesfunds for the year ahead, but also must plan for thefuture. The current budget includes financialestimates up to 1998-99.

2.2 Parliament’s Budget

For the purposes of the Financial Administrationand Audit Act 1985 (FAAA), Parliament isdeemed to be five discrete departments: theLegislative Assembly, the Legislative Council, theJoint House Committee, the Joint PrintingCommittee (Hansard) and the Joint LibraryCommittee. Each departmental head is theAccountable Officer for that department.

The five departments of the Parliament go throughthe same budgetary process as any public sectorbody. Parliament differs from governmentdepartments in one major way; the fivedepartments do not provide a detailed breakdownof their past or proposed expenditure.

Once departmental estimates are prepared, theyare submitted for approval to the relevantPresiding Officer (Speaker, Legislative Assembly;President, Legislative Council) for inclusion in theannual budget process. In the case of the threenon-chamber departments, the Presiding Officerwho is chairperson of the Joint House Committeefor that year receives the submission. Currently,

this is the President of the Legislative Council.When the parliamentary departmental budgets arefinalised, they are submitted to Treasury forinclusion in the government’s annual budget. Eachdepartment plans its future operations within thesebudgetary limits. For 1995-96, Parliament’sexpenditure is expected to be around $23 million,or 0.4 per cent of the total State budget (seeAppendix 1). As with other governmentdepartments, additional (unbudgeted) funds arevery occasionally provided from a special accountknown as the Treasurer’s Advance Account.

The final say over budgetary allocations rests withthe Treasurer.

2.3 Accountability Requirements

All government departments and agencies mustreport to Parliament annually on their operations.Annual reports outline a public sector agency’sactivities over the year and include its financialstatements, performance indicators and otherrelevant information.

Both the financial statements and performanceindicators are subject to an audit opinion by theAuditor General. This office also regularlyexamines the accounts of all governmentdepartments and agencies.

Unlike government departments and agencies, thedepartments of Parliament do not fully complywith the requirements of the FAAA.

Parliament itself provides additional financialscrutiny of the public sector in two ways. The firstis through the work done by two of its permanentstanding committees: the Public Accounts andExpenditure Review Committee in the LegislativeAssembly and the Standing Committee onEstimates and Financial Operations in theLegislative Council. The second is through theannual estimates committees in both Houses. Thedepartments of the Parliament appear before thesecommittees.

Although Parliament produces financialstatements, the departments of the Parliament donot produce annual reports and information which

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is associated with them, such as performanceindicators.

The need for accountability within the publicsector was highlighted in the Commission onGovernment’s Report No. 1:

It is generally accepted that government agencies mustdemonstrate greater accountability than private sectororganisations because public funds are compulsorilyacquired from the community through the taxation system.(COG, 1995: 194-95)

2.4 Financial Initiative of the Crown

One of the main principles of the financial processin Westminster-style parliaments is that noexpenditure or taxation can be considered unless ithas been demanded or recommended by theCrown. This is known as the financial initiative ofthe Crown, as ‘[t]he Sovereign, being theexecutive power, is charged with the managementof all the revenue of the State, and with allpayments for the public service’ (Erskine May,1989: 684).

Similarly in Western Australia, this principle isenshrined in s.46(8) of the Constitution ActsAmendment Act 1899. This states that:

A vote, resolution, or Bill for the appropriation of revenue ormoneys shall not be passed unless the purpose of theappropriation has in the same session been recommended bymessage of the Governor to the Legislative Assembly.

By convention, the Governor acts on the advice ofthe Executive Council, which consists of ministersof the Crown. Section 46 of the Constitution ActsAmendment Act 1899 also establishes theLegislative Assembly as the only house wheremoney bills can be introduced and amended. Thismeans that only the government can initiate orincrease appropriations or taxes:

It is a long established and strictly observed rule whichexpresses a principle of the highest constitutional importancethat no public charge can be incurred except on the initiativeof the Executive Government. (Pettifer, 1981: 32)

While the government has control over financialmeasures, it must seek Parliament’s approval tospend public money. Specifically, the lower house

grants the appropriation, while the upper houseagrees to that grant (Barnett, 1992: 223).

Some argue that while it is proper for thegovernment to have the financial initiative over itsown appropriations, it should not control those ofthe Parliament. Those who hold this view do notconsider Parliament to be part of the ‘... ordinaryannual services of the Government’ (s.46(6)Constitution Acts Amendment Act 1899), andtherefore should not be included as part of thegovernment’s budget.


3.1 Should Parliament Have More ControlOver its Finances?

As explained in the preceding section, WesternAustralia’s Parliament is treated much the same asany government department in the budgetaryprocess. Thus, Parliament’s special role is notformally recognised as far as its finances areconcerned. This section will outline the cases forand against change to the existing situation.

3.1.1 Arguments for the FinancialIndependence of Parliament

Parliament is the institution at the centre of oursystem of government and at the heart of ourrepresentative democracy (COG, 1995: 272). It isthe primary institution through which thecommunity can hold the government accountablefor its actions. It has been widely argued, in thecontext of financing arrangements, thatparliaments in Australia are at the mercy of thegovernment (Reid & Forrest, 1988: 433; Wiltshire,1982: 309; Foley & Russell, 1991: 11). That is,governments can dictate the level of funding forParliament from year to year. This hasramifications for the capacity of Parliament to doits job properly, especially in scrutinisinggovernment actions.

A former Speaker of the Legislative Assembly hasobserved that ‘... Parliaments are regularly,continually and disablingly underfunded’ (Barnett,1992: 226). The working environment in theWestern Australian Parliament House, with no

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airconditioning and staff offices set up incorridors, for example, is a case in point.Successive governments have not investedadequate funds in Parliament. There are at leasttwo reasons for this.

First, the government is accountable to electors forits actions. Expenditure on Parliament may not beviewed favourably by electors. Secondly, a well-resourced Parliament can be equated with a well-resourced opposition (Cope, 1992: 43). Thegovernment has the resources of the public serviceto draw on in formulating its policies, whereas theopposition has to rely on its own and Parliament’sresearch capacity to perform its role. Agovernment may not wish to build a well-resourced institution that will aid the Opposition.

It may be desirable to alter the fundingarrangements for Parliament to give it appropriateautonomy from government. Short ofconstitutional change, it is not possible to giveParliament complete financial independence. Butthere are options to increase, to varying degrees,Parliament’s control over its finances. Theseoptions will be addressed in this paper.

3.1.2 Arguments Against the FinancialIndependence of Parliament

As mentioned in Section 2.4, money bills can beonly introduced in the lower house of Parliament.Hence, the government is responsible for raisingand spending public funds. At election time, thatsame government will be accountable to the votersfor the manner in which it raised and spent themoney.

Since the government is ultimately accountablefor expenditure, it is argued it should have controlover expenditure. Should a public institution gainfinancial autonomy, the government could bepolitically punished for the spendthrift ways of theinstitution. This would not only be unfair, butwould be outside the established lines ofaccountability for the expenditure of public funds.

It is also argued that greater financialindependence for Parliament will lead to increasedexpenditure. An example is the experience of the

Federal Parliament in the early 1980s. As a resultof a Senate Select Committee Report in 1981 (theJessop Report), the then Fraser Governmentallowed the Federal Parliament its ownappropriation bill for the 1982-83 financial year.When introduced, the funding provided for in theParliamentary Appropriation Bill 1982 amountedto a greater than 13 per cent increase on fundingfor Parliament from the previous year. For1983-84, funding jumped another 15.2 per cent,and in 1984-85 another 24.1 per cent (TheNational Times, 25-31 October 1985: 15).

The government then took action to control thisgrowth in expenditure. Senator Peter Walsh, thethen Minister for Finance, explained his view:

I explicitly do not accept the proposition that the Parliamentdetermines how much money the Parliament will get. TheExecutive Government has the financial responsibility, andin the end the Executive Government will determine thatquestion (quoted in Reid & Forrest, 1989: 407).

Important Issues

• Should the Western AustralianParliament have financial independencefrom the government?

• If so, should the government still beanswerable for Parliament’sexpenditure?

3.2 Options for Greater Financial Control

Whilst there are a number of minor innovationsthat could be made to alter Parliament’s degree ofcontrol over its funding, experience from otherparliaments, both in Australia and overseas,suggests that there are essentially two majorreform models: a parliamentary commission and aseparate appropriation bill. They are not mutuallyexclusive. A parliamentary commission canfunction with or without a separate appropriationbill. The reverse is also true.

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3.2.1 The Parliamentary Commission Model

The House of Commons Commission (HCC) inthe United Kingdom (UK) was referred to by theWA Royal Commission as an option forconsideration (1992: II 5.2.3).

The HCC is established under an Act of the UKParliament (the House of Commons(Administration) Act 1978 (UK)). It hasresponsibilities only for the House of Commonsand not the House of Lords. It consists of theSpeaker (the Chair of the Commission), theLeader of the House, a member nominated by theLeader of the Opposition and three backbenchers.It is the employer of all the staff of the House. ABoard of Management, consisting of sixdepartmental heads and chaired by the Clerk of theHouse, advises the Commission on all mattersaffecting the departments and is responsible forimplementing decisions of the HCC.

The HCC is responsible for preparing the House’sfinancial estimates. These estimates are laid beforethe House as part of the normal budgetary process.There is no formal role for the Treasury in thisprocess, which has led to comment that:

This is a far cry from the days when Treasury approval hadto be secured for the appointment of an extra part-timecleaner. This control by the House of its own administrativeexpenditure has proved important in respect of the staffingand operational expenses of select committees, includingoverseas travel, and the development of research services inthe Library. In these matters the elected House of thelegislature can boast a precious degree of independence(Griffith & Ryle, 1989: 160-1).

For accountability purposes, the HCC publishes anannual report which includes reports from eachdepartment. The value of this document has beenquestioned: as one observer has commented ‘... [i]twould be difficult to design a more uninformativedocument’ (Garrett, 1992: 183).

The primary objective of a parliamentarycommission is to increase Parliament’s controlover its funding, particularly by its members. Theinfluence of the government is not necessarilyremoved, but may at least be diminished.

In the Australian context, the unicameralQueensland Parliament did have a parliamentary

commission, the Parliamentary ServicesCommission (PSC) which followed the earlierexamples of the UK HCC (1978) and the NewZealand House of Representatives (1985), until itsabolition in September 1995. The PSC consistedof seven members under the chair of the Speaker.Ministers, except for the minister who was alsoLeader of the House, were excluded frommembership of the Commission (s.6(2) of theParliamentary Service Act 1988 (Qld)).

The merit of such a Commission was brought intoquestion when the Queensland Speaker moved forits abolition. He claimed its removal would resultin a more independent and effective Parliament, asthe Commission had been dominated by membersof the party in government (The Australian, 7September 1995: 4).

The establishment of a parliamentary commissionin Western Australia is an option forconsideration. Some of the issues that would needto be considered are:

• The bicameral nature of our Parliament wouldneed to be accounted for in the makeup of thecommission.

• The procedure by which the five departmentswould report to the commission.

• The composition of the commission in termsof whether ministers should serve on it;whether government members should hold amajority; whether minor parties should berepresented.

• The extent to which the commission wouldhave to liaise with Treasury over the level offunding.

Important Issues

• Should the Western AustralianParliament have a parliamentarycommission?

• If so, how should its membership bedetermined?

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3.2.2 The Parliamentary Appropriation BillModel

Parliament’s budget is included in theappropriation bills of the annual State Budget.Thus, funding for Parliament is not differentiatedin this respect from other government services.Proponents of financially autonomous parliamentsconsider this arrangement does not adequatelyreflect parliament’s special place in our system ofgovernment. Instead, they suggest parliamentsshould have an exclusive appropriation bill fortheir purposes (see Foley & Russell, 1991: 33;Moore & Wilkins, 1992: 28; Jessop, 1981: 18-19).

Some parliaments in Australia have separateappropriation bills, amongst them the Victorianand Federal Parliaments. The extent to whichthese arrangements provide autonomy to theseparliaments is questionable. With respect to theFederal Parliament, as noted in Section 3.1.2 ofthis paper, the government retains effectivecontrol over the amounts that appear in the annualAppropriation (Parliamentary Departments) Act(Cwlth).

The existence of a separate appropriation bill maybe less important than the method by which it iscompiled. That is, a separate bill may simply besymbolic of parliamentary independence, if inreality the government sets ceilings or targets onfunding.

There are several ways this control could belessened. A parliamentary commission, asdescribed in the previous section, could beresponsible for preparing the appropriation bill. Acritical issue might not be the bill itself, but ratherthe composition of the commission.

An alternative arrangement would be for thePresiding Officers, in consultation withparliamentary departmental heads, to prepare andintroduce the appropriation bill. Again, the partyallegiances of the Presiding Officers could make asignificant difference to how independent such aprocess would be.

Another approach was taken by the Senate, whichestablished a Standing Committee onAppropriations and Staffing in 1982. This is

responsible for determining the Senate’sappropriation, which is then forwarded to theMinister for Finance for inclusion in the annualparliamentary appropriation bill. As shown inSection 3.1.2, despite this measure of autonomy,the government still has ultimate control over thecontent of the bill.

There are obvious difficulties associated with thepassage of such a bill through Parliament. Asdescribed in Section 2.4, it is only the governmentthat can raise and spend money. Regardless ofwhether a separate appropriation bill has beenprepared by a parliamentary commission, thePresiding Officers, or by some other means, it willneed the support of the government if it is to beapproved. Whilst it might be possible to establisha convention that government would allow theautomatic passage of a parliamentaryappropriation bill, conventions are not alwaysobserved. Moreover, there is always the potentialfor conflict between the two houses.

Important Issues

• Should the Western AustralianParliament have its own appropriationbill?

• If so, should the bill be prepared by aparliamentary commission, the PresidingOfficers, or by some other means?

• Should limits be set on the amountsrequested by Parliament in such a bill,and if so by whom?

• By what means could disputes overfinancial resources between Parliamentand the government, or between the twohouses, be resolved?

3.3 Unforeseen Expenditure

Occasionally, Parliament needs additional funds.This can occur for a number of reasons, but ismost often caused by the setting up of newcommittees. Parliamentary committees can beestablished at any time to investigate a specific

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matter, such as road safety or youth affairs. Theyrequire their own staff and budget to carry outtheir inquiries. Usually, they have only a limitedlife, so it is necessary for them to becomeoperational as soon as possible.

A major difficulty for Parliament is that annualdepartmental budgets are prepared on the basis ofprevious expenditure and expected outlays. It isimpossible for the departments of Parliament to beprepared fully for unexpected costs. When thesedo occur, additional funds may be needed.

Currently, any additional funds for unforeseenexpenditure must be requested from Treasury bythe respective Presiding Officer. This has been asource of some contention, as it is argued that ifeither House (or both jointly) has approved aparticular course of action, it must be carried out.In other words, that the government should not beable to withhold or restrict funding.

Two options have been suggested to avoid theneed for the Presiding Officers to approach thegovernment for extra resources. The first option isto provide each Presiding Officer with an advanceor contingency fund. This would allow them togrant extra money for unanticipated expenses,such as overseas committee travel, without havingto go back to Treasury for funds. This modeloperates in the Federal Parliament, whereadvances are provided to each Presiding Officer,in addition to a joint advance for both. ThePresiding Officers make the funds available if theyare satisfied the expenditure is urgently requiredor was unforeseen when the annual appropriationwas made (Victoria, Joint Select Committee on theParliament of Victoria, 1991: 14-15). Again, theparty allegiances of the Presiding Officers couldinfluence their decision-making when determiningfunding requirements.

The second option is to allow the PresidingOfficers to direct the Treasurer to provideadditional funds automatically when certainexpenditure is required. This money would bedrawn from the Treasurer’s advance account(Barnett, 1992: 228).

In both options, Parliament has some control overallocating additional resources. While the latteroption still requires the Presiding Officers to gothrough Treasury, it allows them potentially todraw a greater amount of money.

While the unpredictability of Parliament’srequirements can be used to justify greaterfinancial independence, it can also be used toargue the opposite. That is, given the nature ofParliament’s operations, it is claimed that thegovernment is better placed than Parliament toprovide it with additional funds when required(Barnett, 1992: 228).

Important Issues

• If Parliament encounters unanticipatedexpenditure, should it be provided by thegovernment, as and when requested bythe Parliament?

• If the Presiding Officers were to beprovided with advance accounts, shouldthey be required to disclose how themoney was spent?

3.4 Internal Structure of Parliament

As discussed in Section 2.2, Parliament isstructured around five departments: theLegislative Assembly, the Legislative Council, theJoint House Committee, the Joint PrintingCommittee and the Joint Library Committee.

The five departments generally operateindependently of each other, except on mattersaffecting two or more departments. Each has aspecific area of responsibility and manages itsown staffing, administrative and financialoperations.

A review of the Victorian Parliament found thatmost Westminster parliaments had ‘... no singlepoint of managerial direction, [with] corporateservices functions of personnel and financialmanagement being largely dispersed among thedepartments’ (Foley & Russell, 1991: 33). This

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description can also be applied to the WesternAustralian Parliament.

Parliament’s current structure, of five separatedepartments, is not without problems. A lack ofcoordination or overlapping responsibilities oftenoccur. For example, over a number of yearsseveral parliamentary departments operatedincompatible computer systems. In addition,Parliament’s structure can create difficulties forgovernment agencies such as Treasury and theAuditor General’s Office. Rather than dealing withthe single institution of Parliament, they mustliaise with five separate departments. This can beadministratively inefficient and time-consuming.

From as early as 1910, debate has focussed on theappropriate number of departments forparliaments (Reid & Forrest, 1989: 408). Thesehave ranged from one, two, three or five,depending on what is considered necessary ‘... inorder to ensure the efficiency and cost-effectiveness of the administration in the provisionof services to the Members and the public(Murray, 1989: 43).

In recent years, the tendency in some Westminsterparliaments has been to merge departments toenhance their cohesion (Foley & Russell, 1991:33). For example, the Western AustralianParliament could either be restructured as onedepartment (with five subdepartments), or as threedepartments. This latter option could be achievedby retaining the Legislative Assembly andLegislative Council and creating anAdministration Department, which would beresponsible for all joint services and facilities,including the library and Hansard.

Another proposal, closely linked to the notion of asingle department, is the creation of a position ofChief Executive Officer or Director General forParliament. This officer would centrallycoordinate all administrative and financial aspectsof Parliament. One advantage of this option wouldbe that ‘... all functions common to the Parliamentwould be centralised in one office or Secretariat-General ... and this would achieve economies ofscale’ (Senior Management Coordination GroupReport in Murray, 1989:100). It would also mean

Parliament could be represented by a single,unified spokesperson on all parliamentary, asopposed to political, matters.

The gain in administrative efficiencies must bebalanced against the realities of Parliament. Eachdepartment has developed its own separate anddistinct needs, which are administered in differentways. Amalgamating the departments, it is argued,would lead to a loss of their autonomy.

Creating the position of Chief Executive Officer iscontentious as it is claimed that by being able tooversee, and therefore direct activities, such anofficer could interfere with the running ofdepartments, particularly the two Houses:

There are certainly constitutional reasons for retainingseparate and independent channels of support for the Speakerand President of the Legislative Council, since inconstitutional terms the two houses of Parliament areseparate entities ... and it is therefore necessary to avoid asituation where the independence of either house can becompromised or made subservient by reasons ofadministrative arrangements, budget cuts or similarmeasures. (Foley & Russell, 1991: 33-34)

Another drawback is that such a person would be amanager and not necessarily a specialist inparliamentary services. It is argued this couldinterpose a managerial barrier between the housesand providers of the services.

Important Issues

• Should Parliament’s currentdepartmental structure be retained?

• If not, what changes could be made?

• Would it be more efficient and effectiveto employ a Chief Executive Officer tooversee all of Parliament’sadministrative and financial matters?

3.5 Managing Parliament’s Resources

Parliament’s budget is expected to be around $23million in 1995-96. Most of this is spent onsalaries and operating expenditure, such as

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printing, photocopying and other costs. Capitalexpenditure, including new buildings and theupgrading of facilities, forms a small proportion ofthe budget.

This budget does not represent the total amountspent on Parliament. The Ministry of Premier andCabinet, for example, is responsible for members’electorate offices, travel and imprest accounts.Some argue this responsibility should be returnedto Parliament (Barnett, 1992: 231), as onlyParliament knows what its needs are and is bestplaced to coordinate all of its functions.

It is recognised that Parliament and its membersmust be provided with the necessary resources toperform their functions effectively, not just withintheir electorates but in Parliament House as well.Such resources include adequate office space,library resources and dining facilities.

For years, inadequate accommodation inParliament House has been seen as a majorproblem for both members and staff. Mostmembers share an office with at least two or threeothers, and all ministers must make do with onecommon room. Both ministers and membersfrequently hold meetings in corridors.

Plans to upgrade Parliament’s buildings andfacilities have not met with any degree of success.Indeed, one of the fears of having a financiallyindependent Parliament, by whatever form, is thatit will be tempted to overspend its budget. Itscritics argue that this is not allowed to happen inthe public sector, where departments operatewithin tight budgetary constraints:

... it is inappropriate for the Parliament to change its fundingarrangements when funds in government and otherconsolidated revenue based organisations are not changing inthe same way and the Parliament should keep within thesame general allocation and attempt to reorganise priorities.(Barnett, 1992: 226)

Unlike public sector agencies, Parliament does notfollow the strict accountability requirements laiddown by the Financial Administration and AuditAct 1985 (FAAA). Apart from the figures printedin the State budget papers, there is no explanationof how Parliament’s money has been spent. As noparliamentary department produces an annual

report or performance indicators, there is littleinformation on how Parliament operates. Thus thepublic does not know if parliament’s resourceshave been managed efficiently. Part of thejustification for this lack of accountability is thatthe FAAA requirements could impinge onParliament’s independence. Nevertheless, as Copepoints out:

It is often said that parliaments are accountable to the publicfor their performance. This is a questionable propositionwhich would scarcely stand up to the same criteria ofaccountability as are required by parliaments of the publicsector. Is there a contradiction between what parliamentsapply to public servants and what parliamentarians apply tothemselves? (1995: 15)

Important Issues

• Should Parliament be required to complywith all the accountability requirementsof the Financial Administration andAudit Act 1985, such as annual reportsand performance indicators?

• Should all parliamentary expenditure beincluded in Parliament’s budget, that is,items such as members’ electorateoffices, travel and imprest accounts?

4. SUMMARY

The Commission on Government’s task is toexamine the most effective means of securing thefinancial independence of Parliament to enable itto undertake its business. One of Parliament’sessential functions is to scrutinise the government;that is, to be a watchdog. The WA RoyalCommission warned that ‘... it [government]should not be allowed, through its control of theState’s budgetary processes, to blunt the capacityof the Parliament to review the government itself’(1992: II 5.2.3).

An important corollary to Parliament securingfinancial independence, is whether Parliamentshould be fully accountable for its financialmanagement under the FAAA (and otherlegislation) as it applies to all governmentdepartments and agencies. This would include the

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departments of Parliament being subject toscrutiny and report by the Auditor General, andthe requirement that they each publish an annualreport.

This discussion paper has outlined the argumentscommonly presented in favour, and against, theproposition that Parliament should be financiallyindependent. The paper also has examined anumber of means by which the financialindependence of Parliament could be enhanced.

REFERENCES

Barnett, M. (1992) ‘Financial Autonomy of theParliament’ Paper presented to the 23rdConference of Presiding Officers and ClerksAdelaide

Commonwealth of Australia, Senate SelectCommittee on Parliament’s Appropriations andStaffing (Jessop) (1981) Report Canberra: AGPS

Cope, R.L. (1992) ‘Myths and Realities ofAdministering Australian Parliaments. Commentson the Foley-Russell Report’ Legislative Studies7(1): 42-52

Cope, R.L. (1995) ‘The Other Face ofAccountability: Annual Reports from the NewSouth Wales Parliament and its Organs’ inProceedings of the Seminar on Annual Reportingin the NSW Public Sector: the Best is Yet to ComeReport No. 2/51 [No. 92]

Erskine May (1989) Parliamentary Practice (21stedition) London: Butterworths

Foley, Kevin J. and Bill Russell (1991) StrategicManagement Review of the Parliament of VictoriaMelbourne: Government PrinterGarrett, John (1992) Westminster. DoesParliament Work? London: Victor Gollancz

Griffith, J.A.G. and Michael Ryle (1989)Parliament. Functions, Practice and ProceduresLondon: Sweet & Maxwell

Moore, T. and Roger Wilkins (1992) Report onManaging the Parliament Sydney: GovernmentPrinter

Murray, Philomena (1989) Comparative Analysisof Parliamentary Administrations Melbourne:University of Melbourne

Pettifer, J.A. (1981) House of RepresentativesPractice Canberra: AGPS

Reid, G.S. and Martyn Forrest (1989) Australia’sCommonwealth Parliament 1901-1988. TenPerspectives Melbourne: Melbourne UniversityPress

Victoria, Joint Select Committee on theParliament of Victoria (1991) Progress Reportupon the Budget Process for ParliamentMelbourne

Western Australia Government (1995) BudgetPaper No. 4. Consolidated Fund ForwardEstimates 1995-96 - 1998-99 Perth

Western Australia, Auditor General, Office of(Auditor General) (1994) Public SectorPerformance Indicators 1993-94 Perth

Western Australia, Commission on Government(COG) (1995) Report No. 1 Perth


Wiltshire, Kenneth (1982) ‘Staffing andappropriations of parliament’ in Nethercote, J.R.(editor) Parliament & Bureaucracy.Parliamentary Scrutiny of Administration:Prospects and Problems in the 1980s Sydney:Hale & Iremonger

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LEGISLATION

Constitution Acts Amendment Act 1899


House of Commons (Administration) Act 1978(UK)

Parliamentary Appropriation Act 1982 (Cwlth)

Parliamentary Service Act 1988 (Qld)

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APPENDIX 1

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6th Floor, May Holman Centre32 St George's TerracePerth Western Australia 6000Telephone: (09) 222 0544Free Call: 1800 622054Facsimile: (09) 222 0522

CO M M I S S I O NO N

GO V E R N M E N T

WESTERN AUSTRALIA

COGMarch 1996

Specified Matters: 4 &12

Pecuniary andOther Interests

Media Secretariesand the GovernmentMedia Office

This is a Discussion Paper, not a Report.The Commission has formed no conclusion on any issue

mentioned in this Paper. The purpose of the Discussion Paperis to encourage persons or organisations to make

submissions to the Commission and to help them by:(a) identifying particular issues onwhich submissions are sought; and(b) providing information to enable

views to be formed on the issues.This Paper is not meant to restrict persons

or organisations in any way.They should feel free to raise other relevant issues.

The Commission appreciates receiving any comments on one,some or all of the issues mentioned.

DIS

CU

SS

ION

PA

PE

R N

o.

13

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the potential for private interests to be placedahead of public duty.


SUBMISSIONS

The Commission invites people and organisationsto make written submissions on the issues set outin this Discussion Paper. Those preparingsubmissions should feel free to include any otherissues they consider relevant, whether or not theyare mentioned in this paper.






PREFACE

The Commission on Government’s functionsinclude inquiring into 24 Specified Matters if andto the extent the Commission considers thosematters relevant to the prevention of corrupt,illegal or improper conduct of public officials,including government ministers and Members ofParliament. The Commission may also inquireinto other matters it considers relevant to theprevention of corrupt, illegal or improper conductin the public sector.




This paper deals with Specified Matter 4concerning the organization, role and functions ofgovernment media services. It considers theproduction, dissemination, funding and proprietyof government information. Specified Matter 12examines the registration and declaration ofinterests of public officials, as a means of reducing

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CONTENTS

Part I ORGANISATION, ROLE ANDFUNCTION OF MEDIASECRETARIES AND THEGOVERNMENT MEDIA OFFICE

1. INTRODUCTION

1.1 Government, the media and the public1.2 Government Media Services in

Australia and Overseas


2.1 The Development of GovernmentMedia Services

2.2 The Current System2.3 The Chain of Accountability


3.1 Structure of Government MediaServices3.1.1 The Government Media Office3.1.2 Public Affairs Units and the

Communications Unit3.1.3 Opposition Media Resources

3.2 Operation of Government MediaServices3.2.1 Media Secretaries3.2.2 Employment Arrangements3.2.3 Media Secretaries and the

Government Media Office3.2.4 Access to Media Monitoring

3.3 Responsibility and Regulation3.3.1 Quality of Information3.3.2 The Free Media3.3.3 Government Media Staff3.3.4 Reporting Requirements and

Parliamentary Scrutiny3.4 Government Media Services during

Election Campaigns

REFERENCES

Part II PECUNIARY AND OTHERINTERESTS

1. INTRODUCTION



3.1 Members of Parliament3.1.1 Restrictions on Voting and

Participating in Debates3.1.2 Declaration of Interests3.1.3 Register of Interests3.1.4 Interests to be Disclosed3.1.5 Pecuniary Interests of the

Spouses and Dependants ofMembers of Parliament

3.1.6 Public Access3.1.7 Form of Disclosure

Requirements3.1.8 Penalties, Enforcement and

Administration3.2 Ministers

3.2.1 Spouses and Dependants ofMinisters

3.2.2 Types of Interests to beDisclosed

3.2.3 Administration of the Code3.2.4 Public Access3.2.5 Penalties and Enforcement

3.3 Local Government Members andOfficials3.3.1 Types of Interests to be

Disclosed3.3.2 Public Access to Information

Disclosed3.3.3 Administration, Enforcement

and Penalties3.4 Senior Public Servants, Members and

Senior Officers of StatutoryAuthorities and State-OwnedCompanies3.4.1 Spouses and Dependants of

Senior Public Servants,Members and Senior Officers ofStatutory Authorities andState-Owned Companies

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3.4.2 Types of Interests to beDisclosed

3.4.3 Public Access3.4.4 Administration, Penalties and

Enforcement

4. SUMMARY

REFERENCES

Part I SPECIFIED MATTER 4ORGANIZATION, ROLE ANDFUNCTION OF MEDIASECRETARIES AND THEGOVERNMENT MEDIA OFFICE

1. INTRODUCTION

1.1 Government, the Media and the Public

Government has an obligation to provide thepublic with accurate, comprehensive informationabout its activities and their consequences.Information is the only basis on which the publiccan hold government accountable. Free, wellinformed media are a vital part of the process,partly because most of what people know aboutgovernment is conveyed through the media. At atime when government functions have becomemore complex and pervasive, institutions havebeen established to increase the flow ofinformation.

One such institution is the Government MediaOffice (GMO) in Western Australia, which hasgrown under successive governments to the pointwhere the journalists it employs would besufficient to staff a small newspaper. If othersworking in media relations for governmentdepartments and agencies are added, the total is asignificant proportion of all the workingjournalists in Western Australia.

Staffed by trained journalists who liaise with themedia on behalf of ministers, the GMO makes amajor contribution to the content of the news in

Western Australia. The activities of the GMOcame to the attention of the Royal Commissioninto the Commercial Activities of Government andOther Matters (WA Royal Commission), whichexpressed concern about the inevitability ofgovernment media services being used not only totransmit information but also to manipulate thenews.

There is little argument that governments needmedia officers. They are needed to manage theprocess of information dissemination that isessential to the achievement of government goalsin areas such as public health and safety, andeconomic development. And senior publicofficials, including ministers, need assistance ifthey are to respond promptly to the demands ofnewspapers, magazines, television and radio.

Government media services do more than simplyrelease objective information. A media secretary isexpected not only to present the facts accurately,but also to promote the image of the governmentof the day (and so, indirectly, of the party orparties in power); there is inevitably conflict, onoccasion, between the two aspects of the role.

With information transmission it is difficult,perhaps impossible, to separate governmentalfrom party functions. The public has a right to betold about government achievements, but any suchreport is likely to reflect favourably on the party inpower. Government ministers belong both to theexecutive and to the party, and it is party activitythat provides the main basis on which democraticdecisions are made. Incumbency has both benefitsand drawbacks. Rather than harbour the illusionthat the partisan element of government mediaactivities can be eliminated or neutralized, it maybe preferable to acknowledge it as inevitable andconcentrate on managing it better.

Apart from paid advertising, governmentinformation is largely carried throughcommunication channels not under governmentcontrol. The news media are independent, theirpurposes are commercial and professional. Theyhave their own views of what is newsworthy andare not prepared to serve as a mere conduit forofficial information. Many of the more

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controversial activities of media secretaries maybe motivated by the need to cater to the newsvalues of the media if their story is to be reported.

Specified Matter 4 requires the Commission toconsider matters relevant to the prevention ofcorrupt, illegal or improper conduct with respectto:

4. The organization, role and functions of mediasecretaries of the government and its agencies and theGovernment Media Office.

The Fitzgerald Royal Commission found in thelate 1980s that media units in Queensland could beused ‘to control and manipulate the informationobtained by the media and disseminated to thepublic’, adding that ‘... there is no legitimatejustification for taxpayers’ money to be spent onpolitically motivated propaganda’ (1989: 42).

The system of government media services mayneed to be examined from time to time todetermine whether its organizational structurerenders it vulnerable to abuse, and whethercorrupt, illegal or improper practices have beenallowed to creep in. This discussion papercanvasses a number of issues on which theCommission seeks public comment.

1.2 Government Media Services in Australiaand Overseas

Governments throughout the world maintainorganizations analogous to Western Australia’sGMO, some of them with enormous resources andhighly sophisticated electronic systems at theirdisposal. In Washington, for example, both thePresident and the Congress have extensivefacilities for TV transmissions. No expense isspared to achieve quick and comprehensivecommunication with the electorate.

The level of government media activity in theUnited States is very much greater than anythingfound in Australia. But the Commonwealth and allState governments maintain media organizationsof some kind, although there is variation in thedegree of central control and in staffing levels.

The Commonwealth Government employs amedia secretary for each Cabinet Minister (andtwo for the Prime Minister), which comes to atotal of 18; although there is presumably somecoordination of the timing of announcements, themedia secretaries do not appear to work under anyclose central supervision. Until the 1996 generalelection, non-Cabinet Ministers received mediasupport from a pool of up to 15 journalistsworking under the Director of the National MediaLiaison Service. The newly elected governmenthas announced the NMLS will be abolished.

In New South Wales, there is one media secretaryper minister and two for the Premier. Centralcontrol is minimal, with any coordination beingachieved by informal contact among the 23 mediasecretaries.

Victoria’s government media services are stronglycentralised, with the Premier’s two mediasecretaries exercising close supervision overministerial media staff. A ceiling has been placedon the number of media secretaries employed, sothat the 21 ministers are served by only 10, withtwo additional media secretaries assigned to thePremier.

In Queensland, there is one media secretary foreach minister and one for the Premier. In addition,there is a Media Unit with a director and deputydirector, who exercise significant control over the16 media secretaries. Weekly meetings are held tocoordinate announcements and media strategy.

In South Australia the 12 ministers have a mediasecretary each, who works fairly independently:although there are meetings and informal contact,there is no close central direction.


2.1 The Development of Government MediaServices

In the 1970s, Western Australian ministersgradually began to appoint media secretaries,often from within the public service. By 1983there was a media secretary for every one or twoministers in the Coalition Government, as well as

Page 6

a small media monitoring unit. Any coordinationwas performed by the Premier’s media secretaries.

The change of government in 1983 did notinitially lead to a major turnover of governmentmedia personnel, but for the first time mediasecretaries were treated as a pool and located in acentral office that operated rather like anewsroom.

In 1984 the GMO, based on the Commonwealthmodel of the time, was established. Its stated aimwas to enhance coordination of government/mediarelations. An important element of the new systemwas a centralised appointment process, with publicadvertising of positions and selection by thedirector of the GMO and the Premier’s mediasecretaries, who were also responsible forassigning media secretaries to ministers. Sincethen all media secretaries have been employed bythe Premier under contract.

Once the GMO was established, with a number ofexperienced journalists appointed to the staff,media secretaries began to spend more time intheir minister’s office, a trend that developedfurther in the late 1980s. Media secretaries werestill, however, expected to keep in close touchwith the GMO and to work regularly from there. Acomputer system was installed at the GMO in late1985, about the same time that the number of staffrunning the media monitoring unit was increasedfrom three to ten.

The transition to a new government in 1993 didnot alter the structure of the GMO. About half themedia secretaries from the previous governmentcontinued in their positions. By contrast, recentchanges of government in other States haveresulted in an almost complete replacement ofmedia staff.

Much of the growth in government media servicesover the years can be attributed to the considerableincrease in demand for information fromcommercial television and radio in WesternAustralia and from the national media, and to thesignificant expansion in regional and communitymedia outlets.

Growth has occurred not only in the number ofmedia secretaries serving ministers and thefacilities offered by the GMO (Figure 1), but alsoin the resources provided by government agenciesfor media liaison and public relations. Theestablishment of public affairs units ingovernment agencies is a quite recentdevelopment, part of the general trend fororganizations to improve their internal andexternal communications. The first public affairsunit was set up in the Health Department in 1985.In September 1995 a central Communications Unitwas created, partly to coordinate the work of thevarious public affairs units now in operation. TheGovernment Advertising Unit, which wastransferred from the GMO to the Department ofState Services in 1992, has been placed under theauthority of the Director of the CommunicationsUnit (Figure 2).

2.2 The Current System

The GMO has 32 staff members, including adirector who reports to the Premier. In addition,two consultants, one in Bunbury and the other inGeraldton, are contracted to provide governmentmedia services to regional areas.

The GMO falls within the CommunicationsSub-Program and the Services for the PremierProgram of the Ministry of the Premier andCabinet. The objective of the CommunicationsSub-Program is

to manage productive communications between governmentand the people of Western Australia, ensuring thatgovernment priorities, policies and activities arecommunicated effectively (1995-96 Program Statements:28).

The functions of the GMO, as described in theAnnual Report of the Ministry, are

... to coordinate and provide media information and facilitateliaison between Ministers and media outlets ... [and] toprovide administrative support for Ministerial mediasecretaries (1994: 16).

The GMO is composed of two sections, the poolof media secretaries (all employed under contractby the Premier) and the media monitoring unit,

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Figure 1: Western Australia - Government Media Office

Organization and Staff Members

DIRECTOR

PREMIER

assigned to

AGENCIES (CEOS, OTHER SENIOR

OFFICERS &PUBLIC AFFAIRS UNITS)

liaise with

ADMINSTAFF (5)

MEDIA MONITORINGUNIT (11)

MEDIASECRETARIES (15)

DIRECTOR

MINISTERS

plus a director and support staff. In 1993-94 itreleased 2452 media statements.

Most government departments and other publicbodies employ journalists to help themcommunicate with the public, both directly andindirectly, through the media. Wherecommunication is a major function of the agency,there is usually a unit dedicated to the purpose;most commonly, its title will be the ‘PublicAffairs’, but others include ‘Communications andPublic Relations’, ‘Corporate Communications’and ‘Community Relations’ (in this discussionpaper all these units will be referred to genericallyas ‘public affairs units’). Small agencies mayemploy a single public affairs officer, in somecases on a part-time basis. The manager of apublic affairs unit reports either directly to thechief executive or through a senior executive suchas the head of corporate services.

Public affairs involve a mix of activities, includingpublishing, advertising and organizingpromotional events as well as media liaison work(drafting media releases and speeches, respondingto media queries, arranging interviews, planningmedia strategy). There are more than 50 publicaffairs units connected to the Government ofWestern Australia, employing about 50journalists, either under contract or as permanentpublic servants. In addition, a growing number ofagencies use the services of journalists on aconsultancy basis.

In addition to the GMO and the public affairsunits, there is a central Communications Unitwhich falls within the Communications Sub-Program of the Ministry of Premier and Cabinet. Itis administratively separate from the GMO andnot concerned with day-to-day media liaison. Theaim of the Communications Unit is to helpgovernment agencies market their programs more

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3.1 Structure of Government Media Services

3.1.1 The Government Media Office

All governments in Australia impose some degreeof coordination on media announcements, but theextent to which ministerial media services arecentralised varies considerably. A governmentmedia office may be simply a place where mediasecretaries congregate to share information, or itcan be a centrally controlled unit that providesservices to ministers and closely supervises theirmedia activities. In Western Australia, the level ofcentral control exercised by the GMO appears tohave been greatest in the mid 1980s.

From a public interest perspective, a highlydevolved system might be inefficient, resulting indiscordant public announcements, a poorlyinformed community and the waste of publicfunds. However, a centralised system mightfacilitate manipulation of the media.Disinformation would not necessarily be involved.

effectively. It has provision for two full-time staff,including a director who reports to the Premier,and a budget allocation of $120,000. GovernmentAdvertising Services, which comes under theauthority of the Director of the CommunicationsUnit, has the equivalent of three full-time staff.

2.3 The Chain of Accountability

Media statements are one of the most commonmeans by which government communicatesinformation to the media. Government mediastatements fall into two categories: statements onroutine administrative or operational matters thatare released by the relevant CEO, who isresponsible for their accuracy to the relevantminister, who is in turn responsible to Parliament;and ministerial statements that are released by theGMO and for which the approving minister isresponsible to Parliament. Figure 3 shows theprocess by which both types of government mediastatement are drafted, checked for accuracy andapproved for release.

Figure 2: Western Australia - Communications Unit

Organization and Staff Members

GOVERNMENTADVERTISING

PREMIER

DIRECTORliaises with

MINISTERS &AGENCIES (CEOS,

OTHER SENIOR OFFICERS&

PUBLIC AFFAIRS UNITS)

STAFF (1)

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Figure 3: Western Australia - Government Media StatementsPreparation, Approval and Dissemination

GOVERNMENT DEPARTMENTS,

AGENCIES

MINISTER'SMEDIA SECRETARY

DIRECTOR OFTHE GMO

MEDIA

MINISTER

REPORTED NOT REPORTED

Media statement is drafted within the department/agency, checked for accuracy and approved by CEO.

Senior staff provide information; a statement may be drafted by journalist and checked for accuracy by senior staff.

Drafts statement or redrafts/ transmits statement provided by department/agency. Some statements are entirely generated by the Minister's Office.

Reviews draft, approves final statement.

Checks statement from whole-of-government view point and approves.

May use statement, depending on its perceived news value.

MinisterialStatement

Departmental/AgencyStatement

Page 10

Simply by providing a flow of packagedinformation a GMO can encourage the media todo little more than pass the government’s messagestraight on to the public.

One concern about a centralised governmentmedia unit is the potential for it to operateautonomously, that is, for it to generate anddistribute material for which no minister could beheld responsible. All media statements released bythe GMO are in the name of a minister, who isresponsible for their content, and the Director isresponsible to the Premier for the activities of theGMO.

Important Issues

• Is it in the public interest for WesternAustralia to have a GMO? If so, howmuch central control should it exercise?

• Is there any weak link in the chain ofaccountability for the GMO?

3.1.2 Public Affairs Units and theCommunications Unit

In Western Australia, media officers working inpublic affairs units in government agencies haveno formal links with the GMO. As public servants,their line of responsibility is to their chiefexecutive, even though they typically work incooperation with the relevant ministerial mediasecretary.

One of the primary objectives of the recentlyestablished Communications Unit is to coordinatethe output of public affairs units so thatinformation about government services is betterconveyed to the public. Some disquiet has beenexpressed in Parliament about theCommunications Unit, in particular its potentialfor drawing the public affairs units into anintegrated government propaganda machine. Onthe other hand, it can be argued that somecoordination of the activities of public affairs unitsis no less essential for the efficient communication

of public information than coordination of thework of media secretaries.

Important Issue

• Is there a need for a CommunicationsUnit? If so, what should its role be?

3.1.3 Opposition Media Resources

An important element in a democratic system ofgovernment is an effective parliamentaryopposition. An under-resourced opposition cannotbe expected to hold the government properly toaccount for its actions.

If it is accepted that some of the activities ofmedia secretaries and the GMO favour thepartisan interests of the government of the day, themedia needs of the Opposition should beconsidered. Certainly the respective needs ofgovernment and opposition are very different:opposition’s interaction with the media tends to bedriven by party politics; government has, inaddition, the obligation to inform the public aboutpolicy and services, and to respond to mediaqueries.

In Western Australia, the Premier makes decisionsabout the number and classification of staffpositions allocated to the Leader of theOpposition. There is no ceiling set: if the Leaderof the Opposition believes an increase can bejustified a request is submitted to the Premier,with supporting arguments. The Premier isobliged to seek Parliament’s approval forOpposition staff, together with all ministerial staff,as part of the budget process of the Ministry of thePremier and Cabinet.

For some time, the practice in Western Australiahas been for the Leader of the Opposition to beprovided with resources roughly equivalent tothose of a government minister. The number ofstaff in ministerial offices currently ranges from20 (in the Premier’s office) to 8, with an averageof 13.3. The Leader of the Opposition has a staffestablishment of 16, including one mediasecretary’s position. The Opposition has, on

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occasion, engaged more than one media secretaryby holding the person against another position;such an arrangement reduces the number ofOpposition staff available for other purposes.

The Government has 16 media secretaries,including the Director of the GMO. Further, thereare about 50 journalists employed under contractor as permanent public servants in governmentagencies. Apart from their own media liaison andpublic relations work, they provide the mediasecretaries with material for media releases,briefing and speech notes, and arrange mediaconferences for the minister. Approximately 20additional journalists are working as governmentconsultants.

The extent of the imbalance between governmentand opposition media liaison staff is not new andit is not confined to Western Australia:

The discrepancies between government and opposition innumbers of press secretaries and other support staff,especially at State level, are now huge (Tiffen, 1989: 88).

In its 1993 report on government media andinformation services in Queensland, the Electoraland Administrative Review Commissionrecommended that the staff establishment of theopposition parties be maintained at 20 per cent ofthat of ministerial offices and reflect parity withthe salary profile of ministerial staff. In WesternAustralia such a recommendation would involveincreasing the Leader of the Opposition’s supportstaff (including media liaison staff) from 16 toabout 40.

Important Issue

• How should media resources beallocated to the Opposition?

3.2 Operation of Government MediaServices

3.2.1 Media Secretaries

It is not long since state governments managedtheir affairs with very few media secretaries.

Within the past quarter of a century, the WesternAustralian Government had only two or threeprofessional journalists attached to the Premier’sOffice and a few others in departments andinstrumentalities.

It is true that government throughout the world hasbecome more complex and more pervasive in theintervening period, creating the need forgovernments to provide the public with moreinformation about a wider range of matters. Thisin turn has established a demand for professionalcommunicators, people like journalists who aretrained to pass on information in terms familiar tothe general public and who can advise ministerson how to interact effectively with the media andconvey their message.

The increasing number of media outlets and thedifferent requirements of the various sectors of themedia (print, radio and television; city,community and regional) have added to thecomplexity of the task.

For some time it has been common practice inWestern Australia for most ministers to have amedia secretary who works exclusively for them,although two ministers with lower public profilesmay share one. But the fact that a government’sbusiness can be carried on with fewer media staffhas been demonstrated in Victoria, where nearlyall ministers now share a media secretary. It is notknown at this stage whether, as a result, the peopleof Victoria are better or less well served in termsof receiving information than those of WesternAustralia. It may be that, given the size of WesternAustralia and the amount of time that someministers spend travelling, it would be counter-productive to reduce the present number.

Important Issues

• Should there be a limit to the number ofmedia secretaries?

• Should the present system of allocatingmedia secretaries in Western Australiaremain?

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3.2.2 Employment Arrangements for MediaSecretaries

Employment arrangements have a significanteffect on the turnover of media secretaries and thelikelihood of their role being politicised.

From the establishment of the GMO in 1984 toFebruary 1996, media secretaries were contractedto the Premier under Section 74 of theConstitution Act 1889. Although conditions ofservice were similar to those of public servants,the contract could be terminated at any time onpayment of three months salary in lieu of notice.

The Constitution Act contracts were replaced withterm of government contracts, introduced as partof a collective workplace agreement for mediasecretaries. They are now public sector employeescontracted to the Premier as Minister for PublicSector Management under Part 4 of the PublicSector Management Act 1994. Their contractsterminate on the day fixed for the return of thewrits for the next Legislative Assembly electionfollowing the date of the contract.

In recognition of the personal nature of theworking relationship between minister and staff,and the political nature of some work, publicsector selection standards are not rigorouslyapplied to appointments made under term ofgovernment contracts. Although positions may beadvertised and candidates interviewed, selection isnot necessarily based entirely on merit.

There are now about 84 ministerial staff, includingmedia secretaries, on term of governmentcontracts, and a small number (mainly juniorpositions) employed for the term of the minister.The majority of ministerial staff, among them anumber of principal private secretaries, areseconded permanent public servants, not politicalor personal appointments.

If media secretaries were permanent publicservants, they might be in a stronger position toresist any pressure to engage in party politicalactivities. On the other hand, a new governmentusually wants to decide whom it will employ asmedia secretaries.

A contract under the Constitution Act permitscontinuity of employment, thereby possiblyencouraging media secretaries to perform theirduties in a non-partisan manner. It is noteworthythat the change of government in 1993 resulted inabout half of the media secretaries retaining theirpositions.

Term of government contracts allow a governmentto begin with a clean slate after an election. Theincoming government has the option of renewingcontracts without running the risk of criticism forputting people out of work. The introduction ofterm of government contracts for mediasecretaries indicates recognition of the political/personal elements of the job.

Term of minister contracts, as used in some otherstates for media secretaries, take the process onestep further, acknowledging the typically intimateworking relationship involved. Term of ministercontracts for media secretaries would mean theywould become members of the personal staff oftheir minister rather than belong to a pool. Oneimplication is each minister would have exclusiveuse of at least one media secretary.

The staff of the Leader of the Opposition caneither be contracted to the Premier as the Ministerfor Public Sector Management under Part 4 of thePublic Sector Management Act 1994 or secondedfrom the public sector. Contracts, including thecontract for the Opposition’s media secretary, arefor the term of the Leader of the Opposition. TheLeader nominates the people to be appointed.

Important Issues

• Is a political element inevitable in thework of a media secretary?

• Should the position of media secretarybe filled by permanent public servantsor by people under contract?

• Which type of contract is preferable forthe position of media secretary: aConstitution Act contract, a term ofgovernment contract, or a term ofminister contract?

Page 13

• Should ministers have the freedom toappoint whom they wish as mediasecretaries, without the constraint ofnormal public sector selectionprocedures?

3.2.3 Media Secretaries and the GovernmentMedia Office

There appear to be two general ways of operatingas a media secretary. One is to be primarily aconduit for communication between the ministerand the media, relaying messages between thetwo, drafting material for the minister’s approval,but taking relatively little personal initiative; theother is a more proactive role, with the mediasecretary managing the flow of information to themedia, answering some media queries for theminister, advising the minister on media strategy.

All media secretaries routinely engage in a rangeof strategies intended to maximise the amount ofmedia attention given to news favourable to thegovernment and to minimise anything that couldbe damaging. Some strategies are generallyaccepted as standard public relations practice,such as timing announcements to suit mediadeadlines, providing the media with a regularsupply of news items, drafting media releases andmaking statements that focus on the most positiveaspects of the subject matter. On the other hand,some of the news management practices identifiedby the Electoral and Administrative ReviewCommission in Queensland are highly dubious.Among them are the exclusion from mediaconferences and briefings of journalists and mediaoutlets critical of the government, the use of offthe record briefings to spread disinformation, andthe disclosure of confidential information. It is notclear whether practices of this kind have ever beencommon in Western Australia.

Although the WA Royal Commission did notdirectly inquire into the operations of mediasecretaries and the GMO, it expressed concernabout ‘the scope for abuse, by way of deception,disinformation and positive political manipulationthat may attend a government’s use of its ownmedia officers’ (1992: II 2.7.3). Many would

consider it inappropriate to spend public money tomislead rather than inform the public.

Important Issues

• Should there be any restrictions on thenews management strategies of theGMO?

• What practices would it be improper forthe GMO to engage in?

3.2.4 Access to Media Monitoring

Governments routinely monitor the media tofollow what is being said by and about them andthe opposition. Monitoring enables them to checkon the accuracy with which governmentstatements are being reported and to keep track ofwhat is being said about them. Althoughcomprehensive media monitoring is itself apolitically neutral process, the information itprovides can be used for partisan purposes. Thebest known example derives from the operationsof the National Media Liaison Service (NMLS),the Commonwealth Government’s public relationsand media monitoring organization. When heappeared before Senate Estimates Committee D on5 October 1989, the Director admitted that NMLStranscripts of material embarrassing to theOpposition, printed on plain paper that gave noindication of their source, were regularlycirculated to the Canberra Press Gallery.

In Western Australia, the Media Monitoring Unitis part of the GMO. It has a staff of 11, including acoordinator. The Unit concentrates its resourceson monitoring newspapers and radio. Televisionmonitoring is performed under contract by aprivate organization.

The Media Monitoring Unit records all news andcurrent affairs radio programmes on audio tapes.Transcripts are subsequently made of potentiallycontroversial statements, including any made bythe Opposition and other non-governmentMembers of Parliament. The Unit does not

Page 14

routinely transcribe a radio statement by aminister, but will do so on request.

Ministers have ready and direct access to anymaterial monitored and any special requests aregiven high priority. Other Members of Parliament,and government agencies, gain access to theMedia Monitoring Unit indirectly, through theParliamentary Library. Since the ParliamentaryLibrary has its own newspaper monitoring serviceand makes videotapes of relevant televisionprogrammes, most of its requests are forstatements made on radio. A daily summary ofradio news items is provided to the ParliamentaryLibrary, with a note indicating the items for whichtranscripts have been prepared and are available.Although the Unit does not prepare specialtranscripts in response to requests put through theParliamentary Library, audio tapes can be madeavailable. The main problem with the systemappears to be the amount of time it takes for atranscript or audio tape to be delivered to theParliamentary Library: reported to be an averageof two days.

Given the relevance to the public interest ofinformation obtained through media monitoring,and its potential to be used for partisan purposes,it may be appropriate for such information to beequally accessible to all Members of Parliament.

Related to media monitoring is the issue of accessto media releases. The GMO provides theParliamentary Library with a bundle of mediareleases about once a week, as does the Oppositionmedia secretary. Government media releases arealso faxed immediately to the Library on request,but a Member of Parliament is not in a position torequest a release unless he or she is aware of itsexistence. It may be in the public interest for bothgovernment and opposition to provide mediareleases routinely to the Parliamentary Library atthe same time as they are circulated to the media.

Important Issues

• Should all Members of Parliament haveequal access to information obtained bygovernment-funded media monitoring?

• Should government and oppositionmedia releases be made moreaccessible? If so, how?

3.3 Responsibility and Regulation

3.3.1 Quality of Information

The WA Royal Commission expressed concernabout the potential for information released bygovernment media units to be politicised:

Government and its agencies ... have a responsibility tocommunicate information to the public about the issues,affairs and practices of the day. Inevitably, there will be apolitical dimension in that communication. There is no clearline between information and propaganda. Therefore, someconstraints are necessary. (1992: II 2.7.2)

A written media statement enables the governmentto provide information to a wide range of mediaoutlets. In the case of a major announcement, it isused as an adjunct to a ministerial pressconference. Journalists are invited to address anyqueries arising from a statement to the ministerthrough the media secretary. Ministerial mediastatements are drafted for the minister by themedia secretary, often on the basis of informationsupplied by a senior official or public affairsofficer in the relevant government agency. Theyare issued by the GMO in the minister’s name andonly with the approval of the minister and theDirector of the GMO. The minister is ultimatelyresponsible for the accuracy of the mediastatement, although the Director of the GMOchecks all statements on behalf of the Premier forany inconsistencies.

Government departments and agencies alsorelease media statements directly to the media,often drafted by public affairs staff. The content ofsuch statements is the responsibility of the

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generating department or agency, and ultimatelyof the relevant minister.

Some media secretaries occasionally make oralstatements to the media in the minister’s name. Itis assumed when they do so that it is with theminister’s authority, and that it is the minister whois ultimately responsible for what is said. It hasbeen suggested, however, that speaking on theminister’s behalf can place a heavy and unfairburden on the media secretary.

Media secretaries may provide fact sheets orbriefing notes to the media; these are not usuallycontroversial and do not necessarily require thespecific approval of the minister or the GMO.

A recent innovation is the provision of publicaccess via the Internet to the GMO’s weeklydigest of ministerial media statements. The mediastatements are linked to the Cabinet Page. Inaddition, many government agencies arepublishing a wide range of material on theInternet. Direct communication to the publicprecludes media scrutiny of the government’smessage (see 3.3.3). In 1995, the InformationPolicy Council issued a policy (Policy 1.1) onpublishing on the Internet and other publicnetworked information services. The policyidentifies agency responsibilities, including theobligation to maintain the currency and quality ofinformation published and to exercise a duty ofcare. The Information Policy Council wasestablished by Cabinet and reports to the Premier.

Important Issues

• Who should be held responsible for theaccuracy of the information presentedin a ministerial media statement: thepublic servant who provides it to theminister’s office, the minister’s mediasecretary, the minister, the Director ofthe GMO, or the Premier?

• Are any additional checks required onthe release of information by the GMO,media secretaries, or governmentdepartments and agencies?

• Is the approach being taken by theGovernment to regulate the publicationof government information via theInternet and other similar servicesadequate?

3.3.2 The Free Media

Deceptive practices are only effective so long asthey go unchallenged ... (Tiffen, 1989: 94)

The media have the potential to be the mosteffective constraint on the behaviour of mediasecretaries and the GMO. By querying the linebeing taken by the government and by seekingindependent and contrary views, journalists canexpose to public view any inconsistencies oromissions in the government’s message, and anyquestions that it raises. The risk of being caughtout is a powerful incentive to candour andaccuracy.

Yet only too often, according to the literature onAustralian journalism, journalists fill what isknown as the ‘news hole’ with scarcely touchedversions of government media statements.Although small media operations with few staffare particularly prone to the practice, a statisticalstudy conducted in Queensland by the Electoraland Administrative Review Commission (1993)revealed that a large circulation daily newspaperran 140 of a sample 279 media releases almostunchanged.

It may be in the public interest for government tofacilitate the capacity of the media to obtaininformation. Freedom of information legislation,for instance, has been a major breakthrough, butsome improvements in administrative proceduresmight be considered desirable.

Although media releases that are reported arefrequently subjected to little scrutiny,governments are often frustrated wheninformation they regard as important goesunreported because it is not consideredsufficiently newsworthy. The distribution ofgovernment media statements and other materialvia the Internet (see 3.3.1) will go some way

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towards improving public access to government-generated information.

Important Issues

• To what extent are the mediaresponsible for detecting shortcomingsin the information provided to them bygovernment media services?

• Should the media be entitled to acceptgovernment media releases at facevalue?

• Should the media be able to assumethat a ministerial statement tells thewhole truth?

• Are there any impediments tojournalists in the media obtaininginformation from government?

3.3.3 Government Media Staff

Media secretaries have a complex role thatinvolves aspects of both journalism and publicrelations. They are expected not only to assist theminister in disseminating accurate information tothe media and answering their queries, but also,and always, to present the government in the bestpossible light. Conflicts may arise from time totime between the two aspects of the role.

There is some ambiguity about the extent to whichthe role is political. Some media secretariesbelieve that the role cannot be performedadequately unless the media secretary (who mayor may not be personally committed to the party inpower) participates without restraint in promotingthe government’s prospects of re-election. Others,while accepting that there is inevitably a politicalelement in their work, perceive their role primarilyas a professional one: they are prepared to utilisetheir journalistic skills to the full on behalf of thegovernment of the day but draw the line at anyinvolvement in policy advice or party politicalactivities.

In addition, media secretaries have a set ofmultiple responsibilities. They work closely with aminister for whom they typically develop strongpersonal loyalty but they operate withinparameters set by the Premier, who employs them,and the Premier’s representative, the Director ofthe GMO, to whom they report. In a sense, theyhave dual responsibilities: a media secretary isrequired to meet the minister’s requirements whileremaining answerable to the Director of the GMOfor attending to the interests of the government asa whole.

Media secretaries also have professionalresponsibilities as journalists. Most current mediasecretaries are members of the Media,Entertainment and Arts Alliance (MEAA), and soformally bound by the Australian JournalistsAssociation’s Code of Ethics. But there is awidely held view that neither the current Code northe revised version recently released forconsideration are compatible with the publicrelations aspect of the media secretary’s role. Boththe current Code and the revised version, forinstance, require the disclosure of all essentialfacts, which a media secretary may not be in aposition to deliver. Finally, the WA RoyalCommission refers to the need for the GMO tohave ‘an informed appreciation of their publicresponsibilities’ (1992: II 2.7.4).

For members of the public demandingaccountability and media secretaries seekingpractical guidelines, the present system has littleto offer. There is little in the way of formalinduction or training to prepare new mediasecretaries for the role. Media secretaries have noduty statement (a written statement that specifiesthe job requirements) and no specific job-relatedcode of conduct.

A code of conduct spells out standards ofbehaviour derived from broad ethical values. Sucha document serves two functions: on the one hand,it provides employees with guidance about what isand is not permissible; on the other, it serves asthe basis for disciplinary action when a violationoccurs.

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Codes of conduct will be developed for all publicsector employees, including media secretaries.Section 21(b) of the Public Sector ManagementAct 1994 requires the Public Sector StandardsCommissioner ‘to establish codes of ethics settingout minimum standards of conduct and integrity tobe complied with by public sector bodies andemployees, and monitor compliance with thosecodes’. The development of a Code of Ethics tocover the entire public sector is now in progress,and recommendations on COG Specified Matter10 (the standards of conduct to be expected of allpublic officials) will be presented in COG’sReport No.3. Once the Code of Ethics is finalised,the Public Sector Standards Commission willassist government agencies in the preparation ofcodes of conduct that are relevant to the agencyand consistent with the Code of Ethics. Thepreparation process will involve all agency staffand include consultation with stakeholders.

An interesting question is whether the complexrole and responsibilities of the media secretarydemand a special code of conduct. Following aretwo possibilities:

• The GMO could develop its own code ofconduct.

• A single code of conduct could be developedto cover all ministerial staff, including allmedia secretaries.

Although most media liaison officers in publicaffairs units are journalists, and therefore have asimilar professional background to that of mediasecretaries, they are public servants with a singleline of responsibility to the chief executive of theiragency and perceive their role as being politicallyneutral. They would presumably be covered bytheir agency’s code of conduct.

Important Issues

• Should media secretaries have a dutystatement?

• Should there be more training for newrecruits to the GMO?

• To what extent should the Director ofthe GMO be responsible for the actionsof media secretaries?

• Would a code of conduct for allministerial staff be suitable for mediasecretaries?

3.3.4 Reporting Requirements andParliamentary Scrutiny

More openness might do much to dissipatesuspicion about the costs and operations ofgovernment media services.

Little detailed information is published on theGMO. The 1993-94 Annual Report of the Ministryof the Premier and Cabinet provides a summary offunctions and a table showing the number ofmedia statements released in the preceding threeyears. The 1995-96 Program Statements (BudgetPaper No. 6) provide, under Sub-Program 1.2(Communications) of the Ministry, the number offull-time equivalent staff (FTEs) for the GMO inthe preceding year and estimates for the currentyear, as well as the total budget. Excluded fromthese figures are the number and cost of mediasecretaries, which are absorbed underSub-Program 2.3 (Support to Ministers and Leaderof the Opposition).

Given the potential for government media servicesto be politicised, consideration might be given tothe annual tabling in Parliament of details ofstaffing and expenditure, including entertainmentexpenses.

Although questions are asked in Parliament fromtime to time, there appears to have been littlesystematic scrutiny by parliamentary committeesof the operations of the GMO or of public affairsunits in government agencies. There are at presentseveral parliamentary committees whose terms ofreference would permit monitoring of governmentmedia services. It may be that there is noperceived need to undertake such a task, or notenough time. Alternatively, governmentdominance might be responsible for the lack ofinterest shown by some committees.

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The Commission on Government hasrecommended the establishment in the LegislativeCouncil of a Public Administration Committee ‘toinquire into and report to Parliament on matters ofpublic administration relating to the probity,efficiency and effectiveness of the entire publicsector’ (1995: II 9.3.2.5). Such a committee wouldbe well suited to the scrutiny of government mediaservices, particularly if the Legislative Councilwere not dominated by the government party orparties.

Important Issues

• Should detailed information aboutGMO staffing and expenditure betabled annually in Parliament?

• Should there be periodic scrutiny by aparliamentary committee of the costsand operations of government mediaservices?

• Should the task be assigned to thePublic Administration Committeerecommended for the LegislativeCouncil by the Commission?

3.4 Government Media Services duringElection Campaigns

It is during an election campaign that thediscrepancy between government and oppositionmedia resources becomes most marked in itseffects. Government media organizations providea significant advantage to the incumbentgovernment, even if their activities remain withinthe ‘normal’ bounds of information disseminationand image promotion. If government media staffbecome directly involved in partisan campaignactivities, they become an important tacticalweapon. Although it is often claimed thatgovernment media employees can maintain a non-partisan role at election time, Derek Parker (1990)reports that during the 1987 and 1990Commonwealth election campaigns the director ofthe National Media Liaison Service operated fromthe ALP campaign headquarters.

An argument can be made for shutting down theGMO during an election campaign to avoid thepossibility of public funds being used to give anunfair advantage to the party in power. On theother hand, the normal media liaison activities ofthe government continue during an electioncampaign. Routine queries need to be answered,information must be provided to the public, andministers require media advice and support. And ifgovernment media staff were required to stopoperating during an election campaign,presumably opposition media staff, also paid fromthe public purse, should be required to do thesame.

Important Issues

• Is it improper for the GMO to be usedfor party political purposes during anelection campaign?

• Should there be any special restrictionson the operations of media secretariesand the GMO during an electioncampaign? If so, should similarrestrictions be imposed on Oppositionmedia staff?

• Should the caretaker conventions beamended to specify the role ofgovernment media services during anelection campaign?

REFERENCES

Birrell, Mark (1989) ‘Government Manipulationof the Media’ IPA Review October: 42-43

Chadwick, Paul (1994) ‘Creating Codes:Journalism Self-regulation’ in Julianne Schultz(editor) Not Just Another Business Melbourne:Pluto Press

Duncan, Tim (1984) ‘Innovation in PoliticalCommunication’ IPA Review Winter: 105-6

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Hasluck, Paul (1986) ‘Politics in the PublicService: The New Corruption’ Quadrant March:11-16

Kennedy, Peter (1991) ‘Managing the Media’ inAllan Peachment (editor) The Business ofGovernment: Western Australia 1983-1990Leichardt, New South Wales: The FederationPress

Media Entertainment and Arts Alliance EthicsReview Committee (1993) Issues PaperDecember

Ministry of the Premier and Cabinet (1994)Annual Report 1993/94 Perth

Morgan, David (1991) ‘Media-GovernmentRelations: The Right to Manage InformationVersus the Right to Know’ Parliamentary Affairs44 (4): 531-540

Orr, John (1990) ‘The Silent Estate’ The BulletinNovember 20: 43-46

Orr, John (1994) ‘Politics, News Management &Monopolies – A Consumer Issue?’ in JulianneSchultz (editor) Not Just Another BusinessMelbourne: Pluto Press

Parker, Derek (1990) The Courtesans: The PressGallery In The Hawke Era Sydney: Allen &Unwin

Prasser, Scott, Rae Wear and John Nethercote(editors) (1990) Corruption and Reform: TheFitzgerald Vision St Lucia, Queensland:University of Queensland Press

Queensland, Electoral and Administrative ReviewCommission (EARC) (1992) Issues PaperNo. 19: Review of Government Media andInformation Services Brisbane

Queensland, Electoral and Administrative ReviewCommission (EARC) (1993) Report on Review ofGovernment Media and Information ServicesBrisbane

Queensland, Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1993) Codes of Conduct for Public OfficialsBrisbane

Queensland, Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1994) Report on Review of Government Mediaand Information Services Brisbane

Queensland, Commission of Inquiry Pursuant toOrders in Council (Fitzgerald Commission) (1989)Report Brisbane

Rosenbloom, Henry (1978) Politics and theMedia Fitzroy, Victoria: Scribe Publications

Seymour-Ure, Colin (1988) ‘Prime Ministers’Press Offices: Australia, Canada and the UnitedKingdom’ Canberra Bulletin of PublicAdministration 55: 41-46

Sigal, Leon (1973) Reporters and Officials: TheOrganization and Politics of Newsmaking USA:D.C. Heath

Tiffen, Rodney (1989) News and Power Sydney:Allen & Unwin

Tymson, Candy and Bill Sherman (1987) TheAustralian Public Relations Manual Sydney:Millennium Books

Western Australia, Commission on Government(COG) (1995) Report No. 2 Perth

Western Australia, Information Policy Council(1995) Information Policy Manual : Policy 1.1Perth

Western Australia, Treasury (1995) Budget PaperNo. 6: 1995-96 Program Statements Perth

LEGISLATION

Constitution Act 1889Commission on Government Act 1994Public Sector Management Act 1994

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Part II SPECIFIED MATTER 12PECUNIARY AND OTHERINTERESTS

1. INTRODUCTION

People who hold public office have a duty to avoida conflict of interest between the public interestand their private interests. A conflict of interestcan arise if public officials are in a position tofavour their private interests over their publicduty. Public officials who actually place privateinterests over their public duty are actingimproperly at the very least, and could be actingillegally or corruptly. An actual conflict of interestor the perception of one can be damaging to publicconfidence in government. In an effort to reassurethe public, various measures have been introducedto avoid conflicts of interest or make themtransparent.

This Specified Matter requires the Commission onGovernment to look at the:

registration of the pecuniary interests and other interests ofMembers of Parliament, ministers, senior public servants,members and senior officers of statutory authorities andState-owned companies, and of other officials for whomregistration in some form may be appropriate given theirofficial responsibilities.

The registration of interests is the first step inavoiding conflicts of interest. Registration requirespublic officials to list those private interests whichcould conflict with their public duty. Dependingupon the nature of the disclosure scheme, thisinformation may be held in confidence or madepublic.

If a conflict is registered or made public, steps canbe taken to avoid the conflict. This can beachieved by requiring a public official to divestany private interest, either permanently ortemporarily, which may conflict with their publicduties. This would prevent public officials fromholding particular interests or prohibit them fromacting officially where a conflict of interest exists.Conflicts may also be avoided by the declarationof relevant private interests at the appropriatetime. Accordingly, public officials would declare,either in confidence to a superior or publicly, the

nature of their private interests. A decision wouldthen be made by the superior about whether apublic official should continue to act in the matter.

Schemes which seek to avoid conflicts byrequiring divestment or prohibiting the holding ofcertain interests do not require disclosure. Otherschemes, such as the registration or declaration ofprivate interests, require private information to bemade available, either publicly or in confidence.

While disclosure regimes are now widespread,there are some negative aspects to such schemes.Public officials, like other citizens, have a right toprivacy. Disclosure of their, and in some casestheir family’s interests, could be seen as anunwarranted intrusion. Disclosure may also act asa disincentive to holding public office. Opponentsof disclosure also argue that most public officialsact in a proper manner and it is unwarranted torequire the majority to disclose in order todiscipline a potential small minority.

There are four possible types of interest that couldbe subject to regulation. First, there is the directpecuniary interest which refers to the directfinancial interest of a public official. Second, anindirect pecuniary interest refers to the financialinterests of a public official’s spouse, children ornear relative. Third, a conflict of a directnon-pecuniary interest would occur, for example,if a public official were in a position to favour anorganisation outside government of which they area member. Finally, an indirect non-pecuniaryinterest would occur when the public officials’spouse, children or near relatives or closeassociates are members of an affectedorganisation.


Members of the Western Australian Parliamentare required by the Members of Parliament(Financial Interests) Act 1992 (the Act) todisclose annually the source or nature of certaininterests but not their value or amount. Returns arethen made public and tabled in Parliament.

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From 1 July 1996, local government members andofficials will be bound by the Local GovernmentAct 1995, which requires a disclosure of pecuniaryinterests and the maintenance of a register forelected members, chief executive officers andcertain council staff. This register will be availablefor inspection by the public. Elected members oflocal government authorities and some staff willalso be required to make disclosures at council andcommittee meetings when a matter arises in whichthey have a pecuniary interest.

A Code of Conduct, promulgated in 1991 by thePublic Service Commissioner, requires all publicoffice holders, such as persons employed underthe Public Sector Management Act 1994, membersand officers of boards, commissions and statutoryauthorities, to disclose their relevant interests to aresponsible authority as soon as practicable afterthe conflict has come to the officer’s attention.Information disclosed by public officials underthis Code is not made public.


3.1 Members of Parliament

Unless they are Ministers, most individualMembers of Parliament do not have direct powerover public expenditure, but they can haveconsiderable influence. Although members canlobby ministers and public officials to advanceany number of causes for their constituents, it isconsidered improper for Members of Parliamentto influence ministers or other public officials fortheir own personal gain or profit. According to theHigh Court in 1915, Members of Parliamentshould exercise their ‘powers and discretions ... inthe interests of the public unfettered byconsiderations of personal gain or profit’(Wilkinson v Osborne (1915) 21 CLR 89 at98-99).

3.1.1 Restrictions on Voting and Participatingin Debates

Both houses of the Western Australian Parliamenthave provisions in the Standing Orders whichrestrict the activities of members where they havea pecuniary interest in a matter before the house or

one of its Committees. These practices have theirroots in the practices and conventions of theHouse of Commons. Standing Order No. 195 ofthe Legislative Assembly provides that:

No Member shall be entitled to vote in any division upon aquestion in which he has a pecuniary interest.

Standing Order No. 357 of the LegislativeAssembly also states:

No Member shall sit on a Select Committee who shall have apecuniary interest in the matters to be investigated by suchCommittee.

While there is no similar Standing Order in theLegislative Council, Standing Order No. 371states that:

No Member who is personally interested in the inquirybefore a select committee shall sit on such committee.

A member’s vote on a matter will only bedisallowed if the interest in the matter before thehouse is personal and not in common with a largenumber of people. This principle was enunciatedby Speaker Abbot of the House of Commons in1811 when he said that a member may beprohibited from voting if the interest was:

... a direct pecuniary interest, and separately belonging to thepersons whose votes were questioned, and not in commonwith the rest of his Majesty’s subjects, or on a matter of statepolicy. (Erskine May, 1989: 354)

A member who is a lawyer, for example, wouldnot be prevented from voting on a bill whichaffects all lawyers. Equally, a member who is ashareholder in a company which is affected bygeneral rather than specific legislation before thehouse may still vote.

As a result of these principles, members are onlyrestricted from voting when they have a verydirect and personal interest in the matter beforethe house. While there have been a number ofoccasions when a member’s right to vote on aparticular matter has been challenged, a member’svote has never been disallowed in WesternAustralia.

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Important Issues

• Should Members of Parliament beprecluded from voting on matters inwhich they have a pecuniary interest?

• If Members of Parliament are to beexcluded from voting on some issues,under what circumstances should theybe prohibited from voting; when theyhave a direct and personal interest orwhen they have an interest in commonwith a large number of people?

3.1.2 Declaration of Interests

While the Standing Orders and conventions mayprohibit members from voting where they have avery direct pecuniary interest, they do not requiremembers to declare the interest prior to, or during,debate on a particular matter. It is a convention inthe House of Commons that members areencouraged to make such disclosures. SpeakerMorrison of the House of Commons said in 1953that:

There is a custom whereby honourable Members, in makingspeeches, if they have an interest, declare it. I think myselfthat has grown up as a matter of custom because Membersdesire to be frank with their fellow Members, and it issometimes a matter of prudence, in the case as honourableMembers should be suspected of unavowed motives. (Houseof Commons Report 57, 1969: p. XIV)

Disclosures of this type are purely voluntary anddo not prevent members from participating indebates. Various Speakers of the House ofCommons, have suggested to members that thiskind of disclosure is advisable, although there isno explicit requirement.

In Western Australia, the Report of theParliamentary Standards Committee drew on thepractices of the House of Commons when itrecommended that:

... as a matter of desirable ethics, prior to speaking or votingon a matter in which a Member has a direct personalpecuniary interest, the Member should declare the nature ofthat interest to the House.

This recommendation was considered by theStanding Orders and Procedure Committee of theLegislative Assembly. It recommended that thecurrent Standing Orders prohibiting membersfrom voting on matters in which they had apecuniary interest be repealed and replaced by arequirement for members to disclose ‘any relevantpecuniary interest’ to the house (Standing Ordersand Procedure Committee, 1992: 7). This Reportwas not considered by the Legislative Assemblyand the Standing Orders have not been amended toreflect the recommendation.

The Standing Orders and Procedure Committeedid not go as far as the Strauss Committee in theUnited Kingdom. The latter not onlyrecommended that members should declare theirinterests to the house on matters being consideredby the Parliament but that they should alsodisclose their interests on an ad hoc basis whenacting in an official capacity outside the house.The Strauss Committee recommended:

That in any debate or proceeding of the House or itsCommittees or transactions or communications which aMember may have with other Members or Ministers orservants of the Crown, he shall disclose any relevant interestor benefit of whatever nature, whether direct or indirect, thathe may have or may be expecting to have (emphasis added)(House of Commons Report 102, 1974: p.v.).

Carney (1991) argues that disclosure, as and whenappropriate is a more effective means of avoidingconflict of interest. Members of Parliament woulddisclose their interests, as the need arose, in thecourse of exercising their official duties. Thiscontrasts with compulsory registration of interestsfor annual disclosure.

Proponents of ad hoc disclosure claim it has anumber of advantages over a register of interests.Declarations are made prior to or during theconduct of public duties. Ad hoc disclosures areimmediate, while registers may not be kept up todate or may be updated annually. An ad hocscheme offers a wider variety of information thatcan be revealed. Under a register, only specifieditems are listed, while an ad hoc scheme normallyrequires any relevant interest to be disclosed.Potentially, this could be a much wider range of

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interests than might be disclosed under a register(Carney, 1991: 31).

There are potential disadvantages of an ad hocscheme. Members may not supply all relevantinformation, either wilfully or through honestmistake. Voluntary disclosure may not be uniform,especially if members have no guidance as to whatkinds of interests should be disclosed. Themember is the only person who knows whatinterests are relevant. This may make the schemedifficult to enforce.

The Victorian Members of Parliament (Register ofInterests) Act 1978 requires both the registrationof certain interests and the ad hoc disclosure ofinterests to the relevant house.

Important Issues

• Should Members of Parliament disclosetheir interests annually, using a register,or should disclosure only take placewhen a conflict is likely to arise?

• Should Members of Parliament berequired to disclose their interest duringofficial dealings outside Parliament?

3.1.3 Register of Interests

The Members of Parliament (Financial Interests)Act 1992 requires Members of the WesternAustralian Parliament to register certain interestsannually with the Clerk of the House of whichthey are a member. The information disclosed isthen tabled and made public.

There are a number of arguments for compulsoryregistration of interests. If there is a perceived lackof public confidence in Members of Parliament, aregister of interests may help correct these byallowing the public to assess the arguments ofMembers of Parliament in light of their interests.A register could help prevent misconduct byMembers of Parliament. In addition, it can beargued that the public has a right to know about

the influences bearing upon a Member ofParliament while performing official duties.

On the other hand, a register could be seen as anunjustified invasion into the privacy of a Memberof Parliament. A register may deter suitablepeople, who wish to keep their pecuniary interestsprivate, from seeking to enter Parliament andcould be used to attack the integrity of individualMembers of Parliament and the Parliament itself.In any case, registration would be easy to avoid by‘lawful rearrangement of a Member’s affairs’(Bowen, 1979: 50).

Important Issues

• Should Members of Parliament berequired to disclose their pecuniaryand/or other interests?

• Is a public register of Members’interests a useful means of disclosingpotential conflicts between public dutyand private interest?

• If disclosure is required, when should ittake place?

• What level of interest should triggercompulsory disclosure?

3.1.4 Interests to be Disclosed

Under the Members of Parliament (FinancialInterests) Act 1992, members of both houses arerequired to disclose the following:

• their estate, interest, right or power over realproperty. Under this section members arerequired to disclose the address or theparticulars of the title of any real propertythey own;

• the source of any income received by amember from a trade, profession or vocationwhere the income exceeds, or is reasonablyexpected to exceed $500. A member mustprovide:

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(a) a brief description of the trade, professionor vocation;

(b) the name and address of the place ofemployment; and

(c) the name of any partnerships the memberhas entered into;

• the name and address of the settlor and thetrustee of any trust in which the memberholds a beneficial interest or of anydiscretionary trust which the member is thetrustee or beneficiary;

• if gifts are received from a single source thatexceed $500. Members are required todisclose the name and address of the personwho made the gift but are not required todisclose details if the gift was made by arelative of the member;

• contribution toward travel undertaken by themember, financial or other, where thecontribution exceeds $500, although there area number of exceptions to this requirement,such as where the contribution is made by arelative or in the course of a trade, professionor vocation unrelated to his duties as amember;

• interests and positions in corporations. Underthis section a member is required to disclosethe name and address of each corporation inwhich they are a member or holds a position(remunerated or not). Members also have todisclose the nature of the interest in thecompany and/or the position held. If thecorporation is not listed on the stock market,members are also required to describe theprincipal business of the corporation;

• the name and address of any trade union,professional or business association in whichthe member holds a position (remunerated ornot). Members are also required to describethe position held;

• the names and addresses of each person towhom the member was liable to pay any debt,where the debt exceeds $500. If the debt ispayable to a relative or to an institution whose

ordinary business includes the lending ofmoney and the loan was in the ordinarycourse of business, it does not have to bedisclosed; and

• the disposition or transfer of real property(including land).

Members are required to disclose the source andnature of financial interests, not their value. Amember who is a shareholder of a listed companywould declare only the fact, not the number ofshares held and their value.

In some jurisdictions Members of Parliament arerequired to disclose the value of certain assetsheld. The main argument against the disclosure ofthese details is that Members of Parliament, likeother citizens, have a right to privacy. The factthat they already have to register certain interestsmay be sufficient.

The First Report of the Committee on Standards inPublic Life (the Nolan Report) in the House ofCommons, recently recommended that Membersof Parliament disclose how much they are paid byoutside companies to do parliamentary work forthem. Members would not have to reveal specificamounts but would be required to indicate a rangewithin which the level of income fell. Theargument in favour of such a provision is that itwould enable the public to assess the likely levelof influence attached to such income.

The Commonwealth Ministerial Code of Conductrequires ministers to declare amounts of incomereceived from their outside interests and the valueof certain assets. This information is not madepublic and is held on a confidential basis by thePrime Minister.

Most States and Territories in Australia requiresome form of disclosure. Some of these schemesrequire more information than the WesternAustralian legislation. In some states members arerequired to disclosure their spouse’s assets, whilein others, the disclosure of savings, bonds anddebentures held by members is also required(Table 1).

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Table 1

Summary of Pecuniary Interests Registers

DECLARATION WA(1) VIC NT NSW SA CWLTH QLD

Any source of income Y Y Y Y Y Y Y

Liabilities Y - - Y Y Y Y

Directorships Y Y Y Y Y Y Y

Sponsored travel Y Y Y Y Y Y Y

Gifts Y Y Y Y Y Y Y

Trusts Y Y Y Y Y Y Y

Land/real estate Y Y Y Y Y Y Y

Partnerships Y Y Y Y Y Y Y

Membership of tradeunions, professional bodies,etc.

Y Y - - - Y Y

Positions held in tradeunions, professional bodies,etc.

Y - - Y - - -

Interests of spouse - - - - Y Y Y

Interests of dependant - - - - Y Y Y

Savings/investmentaccounts

- - - - - Y Y

Bonds/debentures - - - - - Y Y

Shareholdings Y - - - - Y Y

Assets over $5,000 (nothousehold or personal)

- - - - - Y Y

Other possible sources ofpotential conflict of interest(Member only)

- - - - - - -

Other possible sources ofpotential conflict of interest(including Member'sfamily)

- Y Y - Y Y Y

Tabling of interests - Y(2) - Y Y Y Y

Public inspection - - Y(3) Y Y Y Y

(1) In the WA scheme Members may make discretionary disclosures.(2) A summary only is tabled.(3) Conditional.

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The WA Royal Commission did not express anopinion on the Members of Parliament (FinancialInterests) Act 1992 but it did say that if theinterests of spouses and dependants were to beregistered, then ‘consideration should be given tothe compromise procedure of non-publicregistration of these interests’ (WA RoyalCommission, 1992: II 4.8.11). The non-publicregistration of family interests is one option,another is to require disclosure of relevant familyinterests as and when appropriate duringparliamentary business.

Important Issues

• Should the interests of a Member ofParliament’s family be disclosed?

• If such interests are to be disclosed, onwhat basis should it take place?

• Should the information disclosed beconfidential or made public?

• What consideration should be given tothe privacy of Members of Parliamentand their families?

3.1.6 Public Access

When the Members of Parliament (FinancialInterests) Act 1992 was debated in the Parliament,several members suggested that interests shouldbe registered but not made public. Instead, theChief Justice of the Supreme Court could beresponsible for maintaining the register anddetermining whether any conflicts of interest exist(WAPD, Assembly, 1992: 2400). While thesemembers agreed that it was in the public interestto register pecuniary interests, they argued thatMembers of Parliament, like other citizens, werealso entitled to appropriate privacy. It can beargued, however, that public access to the registerwould improve public accountability and enhancethe integrity of the system. The legislation waseventually passed with provisions allowing thepublic access to the register.

Important Issue

• What type of interests should Membersof Parliament be required to disclose?

3.1.5 Pecuniary Interests of the Spouses andDependants of Members of Parliament

Before enactment of the Members of Parliament(Financial Interests) Act 1992, members were notrequired to make annual or post-electiondisclosures of their, or their family, pecuniary orother interests. Under the conventions for thedeclaration of pecuniary interests, members can, ifthey chose, make a voluntary disclosure of anydirect or indirect benefit or disadvantage. Amember can, for example, explain to the housethat a family member or associate has an interestin the matter before the house. Such disclosuresare purely voluntary.

Under the Act members are not required to declarethe pecuniary or other interests of their familymembers. Under section 15 of the Act memberscan, if they wish, add to the register any direct orindirect benefits, advantages or liabilities,pecuniary or otherwise. Members, therefore, havethe discretion to disclose pecuniary or otherinterests affecting their family if they choose.

By contrast, the House of Representative’s registerrequires the disclosure of member’s interests andthose ‘of the Member’s spouse and any childrenwholly or mainly dependent on the Member forsupport’ (House of Representatives Resolution 9,October 1984 - as amended).

It is important to strike the correct balancebetween the public’s right to know and the privacyof the family members involved. The interests ofan individual, perhaps, should not be registeredsimply because that person is related to a Memberof Parliament. On the other hand, the public mayneed to know if the interests held by that familymember may be in conflict with a Member ofParliament’s public duty.

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Important Issue

• If Members of Parliament are requiredto register pecuniary interests, shouldthe register be public or confidential?

3.1.7 Form of Disclosure Requirements

Western Australia already has legislation requiringMembers of Parliament to disclose certaininterests. In the Federal Parliament both houseshave adopted resolutions rather than statuteswhich require members to disclose certain matters.A statutory register has a number of advantages. Aregister required by legislation would be bindingon members and be legally enforceable.Legislation may help remove politicalinterpretation by making the courts rather than theParliament responsible for application andpenalties. The register would be made uniform bylegislation. If both houses were to pass resolutionsto establish a register different provisions may beused in each.

There are also disadvantages to legislation. First,legislation can be inflexible and therefore unableto deal with changing circumstances. If legislationrequires penalties to be imposed by a court, ratherthan Parliament, this would entail some loss ofcontrol by Parliament and raises issues ofparliamentary privilege.

Important Issue

• If Members of Parliament are todisclose their pecuniary and otherinterests, should this be done:

(a) by an Act of Parliament;(b) by way of a motion of one, or both,

of the houses of Parliament; or(c) by some other means?

3.1.8 Penalties, Enforcement andAdministration

The Members of Parliament (Financial Interests)Act 1992 does not allow the courts to becomeinvolved in the enforcement and prosecution ofoffences against the Act. Instead, section 20provides that if a member contravenes, or fails tocomply with, the Act, they are guilty of acontempt of the house, which is dealt with by thehouse concerned. There is no body, such as aparliamentary committee, permanently establishedto investigate and make recommendations onbreaches of the Act.

In the House of Commons, by contrast, a SelectCommittee on Members’ Interests can receive andinvestigate complaints of disclosure andregistration breaches. The Committee then refersmatters to the house which determines anypenalties. Such a Committee does not exist inWestern Australia, although either house couldestablish a Select Committee of Privilege toinvestigate any breaches of the Act.

In 1987 the Member’s Conflict of Interest Act waspassed by the Ontario Legislative Assembly. TheAct provided for the creation of a Conflict ofInterest Commissioner. The Commissioner isempowered to give authoritative advice about theethical duties of Members of Parliament. Membersare also encouraged to seek the Commissioner’sadvice when they have potential conflicts ofinterest. The Commissioner has the power toconduct inquiries and give opinions on compliancewith the Act. In addition, the Commissioner canrecommend that the Assembly impose specificpenalties against a member who contravenes theAct.

The Western Australian Act requires members ofboth houses to lodge returns of relevant interestswithin 30 days from the date on which they aresworn in. After the initial declaration, membersare required to update their returns by 30 July eachyear.

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Important Issues

• What penalties should apply for non-compliance?

• Is there a need for a StandingParliamentary Committee to superviseand/or investigate any failures tocomply?

• Who should supervise, investigate andenforce compliance?

• Should a Conflict of InterestCommissioner, similar to that createdin Ontario, be established in WesternAustralia?

3.2 Ministers

Ministers have greater direct power over theallocation of government resources than otherMembers of Parliament because they areresponsible for the expenditure of large sums ofmoney. As a result, they are subject to aMinisterial Code of Conduct (the Code) whichplaces extra requirements on them with respect topecuniary interests. Like other Members ofParliament, ministers are also subject to therequirements of the Members of Parliament(Financial Interests) Act 1992. Under the Code,ministers are required to forward a copy of theirreturns under the Act to the Premier andsubsequently inform the Premier should anysignificant changes occur. Any extra informationthat is disclosed to the Premier under theMinisterial Code, that is not made public under theAct, is kept confidential by the Premier.

Under the Ministerial Code, ministers are requiredto resign from the directorship of companiesunless that directorship is unlikely to conflict withpublic duty. During Cabinet discussions, ministersare also required to inform the Premier shouldthey find their private interests in conflict withtheir public duty. The minister concerned is thenrequired to withdraw from any relevant Cabinetdiscussions.

The Code gives ministers no explicit direction todeclare their pecuniary interests to persons otherthan the Premier and the Cabinet. Under the NewSouth Wales Code, ministers are required to makedeclarations in the exercise of their public dutiesoutside as well as within Cabinet.

Under the Commonwealth Code, ministers andParliamentary Secretaries are also required todivest themselves of all shares and similarinterests in companies or businesses in the area oftheir responsibility. In addition, under theCommonwealth scheme, ministers are remindedthat, should they choose to make investments inthe stock market, they are required to exercise‘careful personal judgement and discretion inrespect of transactions and, for example, shouldnot purchase or hold any shares if this couldexpose them to challenge’ (Prime Minister andCabinet, 1994: 2). Ministers are also prohibitedfrom seeking or accepting any payment, in moneyor in kind, from ‘persons who are or seek to be inany contractual or special relationship with theGovernment’ (Prime Minister and Cabinet,1994: 1).

Important Issue

• Are the existing Western AustralianAct and Ministerial Code sufficient toavoid conflicts of interest involvingministers?

3.2.1 Spouses and Dependants of Ministers

Ministers are required under the Code not to useinformation obtained during official duties forthemselves or any other person or for any direct orindirect financial advantage. In addition, if theinterests of an immediate family member mayconflict with public duty, ministers are required toinform the Premier on a confidential basis. This isthe same as the requirements under theCommonwealth Ministerial Code.

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Important Issue

• Should the interests of a minister’sspouse and dependants be declared orregistered?

3.2.2 Types of Interests to be Disclosed

Under the Members of Parliament (FinancialInterests) Act 1992 all members, includingministers, are required publicly to discloseinterests listed in 3.1.4 above. Under the Code,ministers are also required to disclose to thePremier, on a confidential basis, the interests oftheir immediate family. In addition, Ministers arealso required to inform the Premier should a realor potential conflict of interest arise.

Under the Commonwealth Code, ministers arerequired to disclose to the Prime Minister, on aconfidential basis, the amounts of income receivedfrom sources outside their Ministerial salary.There is no set amount above which ministers arerequired to disclose. Ministers are advised to usetheir discretion and it is suggested that incomeover $1,000 per year should be disclosed.

Important Issues

• What types of interests should ministersdisclose or register?

• Should ministers be precluded frompaid employment or receivingprofessional fees outside theirMinisterial duties?

• Should ministers be required to placetheir assets in a trust administeredindependently during their term ofoffice?

• Should ministers be required todisclose, on a confidential basis, theamounts of income received from asource outside their ministerial income?

3.2.3 Administration of the Code

The disclosure scheme for ministers isadministered primarily by the Premier. Anyqueries about the operation of the Code arehandled by the Premier. The Code relies onministers informing the Premier and Cabinet ofany potential or actual conflicts. Other than this,there is no registration of pecuniary interestsrequired beyond the provisions of the Act.

Important Issue

• Who should administer the disclosureand registration provisions of theMinisterial Code of Conduct relating topecuniary interest?

3.2.4 Public Access

Any information disclosed under the Code is notmade public. This information is kept confidentialto the Premier. For example, if a ministerdiscloses to the Premier any relevant interest heldby an immediate family member, this informationis kept confidential. If a minister declares aninterest and is subsequently excluded fromCabinet discussions on a matter, the informationwill not be made public.

One of the difficulties with registration under theCode compared with public disclosure under thelegislation, is that the public is in no position tomake an assessment about the significance of thedisclosure. The public, media and Opposition donot know all the information that might reveal aconflict of interest.

As a further check on the Code, the WesternAustralian Royal Commission suggested that notonly should Ministers make declarations to thePremier but also provide the information to theAuditor General:

At the very least, a ministerial code of conduct should obligeministers to declare in writing to the Premier and to theAuditor General a full statement of both the pecuniaryinterests of relevance to the portfolio responsibility. (Part II:4-22)

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Important Issues

• Should information revealed under theMinisterial Code relating to pecuniaryinterests be publicly released?

• Is it necessary to protect the right ofprivacy of immediate family membersof ministers?

3.2.5 Penalties and Enforcement

The Premier is responsible for administering theCode. Any penalties arising from breaches of theCode would therefore presumably be imposed bythe Premier. In particular, where the AuditorGeneral is made aware of any breaches of theCode, he has a duty to report them to the Premier.

Important Issues

• Who should be responsible forenforcing the provisions of aMinisterial Code relating to potential oractual conflicts of interest?

• Should disclosures made under theMinisterial Code of Conduct beforwarded to the Auditor General?

• Who should be responsible forsupervising the declaration of thePremier’s pecuniary or other interests?

3.3 Local Government Members andOfficials

Like Members of Parliament, local governmentmembers can have a considerable influence on thedecision making process. The vast majority oflocal government members and officials use thisinfluence to the benefit of those they represent.However, where this influence is used to theprivate benefit of an elected official this action isboth corrupt and damaging to the integrity of localgovernment.

Where an elected member or official has a privateinterest in a matter before council a conflict ofinterest exists. Where a local government memberor official uses their public office to advance theirprivate interests then this conflict becomes aproblem. Various procedures have been used inlocal government to avoid conflicts of interest.Under the Local Government Act 1995, whichcomes into effect on 1 July 1996, localgovernment elected members and nominatedcouncil officials are required to disclose certainprivate interests in an annual return. These returnsare similar to those required of Members ofParliament. Elected council members are alsorequired to disclose their private interests inmatters affecting local government decisions asand when they arise. Council staff are alsorequired to declare their interests when givingadvice to the council and exercising delegatedfunctions.

Should a member make a declaration, they may beprohibited from participating in discussions andvoting on the matter if the interest is direct andsubstantial. The new Act does, however, allow thecouncil, and in some cases the Minister for LocalGovernment, to permit the elected member to voteand participate in the matter.

Staff members are not prohibited from givingadvice or writing a report provided their interestsare disclosed. Employees who have powersdelegated by the council are not permitted toexercise them if they have a private interest in thematter.

Important Issues

• Should local government members andofficials be required to disclose theirpecuniary and other interests?

• Should local government members berestricted from voting on matters wherethey have an interest?

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• If local government members are to berestricted from voting on a matterbefore the council, under whatcircumstances should the restrictionapply?


The Local Government Act 1995 will requireelected members and council staff makingdisclosures to declare at council and committeemeetings their direct and indirect interests.Indirect interests include those of family membersand persons with whom they are closelyassociated. A closely associated person is definedas a business partner, an employer, a beneficiaryof a trust, a body corporate, a spouse or a childliving with the council member. The SouthAustralian Local Government Act 1934 alsorequires the disclosure of certain interests of anelected member’s or an officer’s spouse anddependant children as part of a register of interestsbut not of other closely associated persons.

The register of interest requires elected membersand certain local government officials to disclose,on an annual basis, only their interests. Theinterests of family and closely associated personsare not included. The following interests arerequired to be disclosed:

• any real property in the district or adjoiningdistrict;

• sources of income;

• any trust in which the elected member holds abeneficial interest;

• any gifts received over an amount to beprescribed by regulation;

• any travel contributions received;

• any interests or positions in corporations;

• any debts to other individuals but not debts tobanks, building societies, credit unions, othertypes of lending institutions or relatives;

• any disposition of real property; and

• any discretionary disclosures, if the electedmember chooses.

Council staff such as the chief executive officer,an officer with powers delegated by the council,an employee who is a member of a committeecomprising council members, and employees andothers nominated by the council to be designatedemployees, are also required to submit annualreturns on the same terms as elected members.

New South Wales and South Australia also requireannual reporting of specified interests by councilmembers and certain officials. Other jurisdictionssuch as New Zealand, Tasmania and the NorthernTerritory require disclosure, as appropriate, ofinterests before council or committee meetings byboth council members and certain officials.Victoria requires both registration and disclosure.

Important Issues

• If disclosure by local governmentmembers or officers is required, whattypes of interest should be disclosed?

• Should interests be registered, disclosedannually or both?

3.3.2 Public Access to Information Disclosed

Under the Local Government Act 1995, the publicwill be permitted to read the register of financialinterests of elected members and council staff.Disclosures by elected members and staff areeither noted in minutes or reports. The public isalso allowed to read these documents.

Keeping the register private is one way ofprotecting the privacy of elected members andsenior staff. Given that elected council membersin Western Australia are not paid, it may be anunwarranted intrusion to allow public access totheir private interests. In States such as Tasmaniaand South Australia, registers are kept private. Onthe other hand, public registers may enhance

Page 32

confidence in local government and promoteaccountability of members and officials.

Important Issue

• Should the information disclosed bylocal government members andofficials be publicly available?

3.3.3 Administration, Enforcement andPenalties

The disclosure provisions of the LocalGovernment Act 1995 will be administered bychief executive officers of each local governmentauthority. These officers will compile the registerand advise elected members of their obligations.Enforcement, as in other states, is handled by theDepartment of Local Government.

The Local Government Act 1995 sets out thepenalties for breaches of the disclosure provisions.If elected members fail to disclose a relevantinterest at a council or committee meeting orcomply with the requirements to register certaininterests they can be liable for a $10,000 fine ortwo years imprisonment. A person who publishesinformation from the register that does notconstitute a fair or accurate report or summary ofthe information is liable to a fine of $5,000 orimprisonment for one year. Persons found guiltyof a serious offence against the Local GovernmentAct 1995 can be disqualified from holding officeor standing for election to council office for fiveyears.

Important Issues

• Who should administer the localgovernment disclosure scheme?

• Are the penalties under the LocalGovernment Act 1995 for offencesagainst the pecuniary interestprovisions adequate to deter corrupt,illegal and improper conduct?

3.4 Senior Public Servants, Members andSenior Officers of Statutory Authoritiesand State-Owned Companies

Public servants and senior officers of statutoryauthorities and state-owned companies makerecommendations to their Ministers or boardswhich can have a considerable influence over theuse of public resources. Some are involved incalling tenders and letting contracts worth millionsof dollars. Most States and the Commonwealthhave developed procedures for ensuring thatpublic servants avoid conflicts of interest.

In Western Australia, public servants are notrequired to register their interests but they aresubject to a Code of Conduct, issued in 1991,which deals with conflicts of interest. The coderequires public officers to provide a writtenstatement to their superiors when an actual orpotential conflict arises. In the case of the mostsenior public officials, this means they wouldreport any such conflicts to their minister.

If a conflict of interest is declared, it is then up tothe responsible authority to determine whether anyaction needs to be taken. A public official whoreports a conflict is banned from participating inany decisions relevant to the conflict. If it isdetermined that a continuing conflict exists, thepublic official may be moved to a new workplace.

3.4.1 Spouses and Dependants of Senior PublicServants, Members and Senior Officersof Statutory Authorities andState-Owned Companies

The code requires public officials to declare anyprivate interests, which can include the knowninterests of family members. The code states that:

While it is not expected that officers will know the privateinterests of all members of their family, it is reasonable toexpect that when an officer becomes aware of informationregarding the interest of a member of their family, and wherethose interests may be connected in any way to the officialduties of the officer, then that officer shall declare thoseinterests to the responsible authority. (WAPSC, 1991: 3)

Under the Local Government Act 1995, electedmembers and certain local government officialswill be required to disclosure the interests of their

Page 33

close associates, which includes family membersand business partners. The main argument againstsuch a provision for public servants would be thatit unnecessarily intrudes on the privacy of theirfamily and associates. On the other hand, if thesedisclosures were kept confidential, as with theCommonwealth scheme, privacy could beprotected but this may not serve the publicinterest.

Important Issues

• Should senior public servants andmembers of boards of governmenttrading enterprises be required todisclose the interests of their familiesand closely associates persons?

• If these disclosures are required, shouldthey be kept confidential?


Interests to be disclosed are not specified underthe code. The code simply requires public officialsto declare any relevant pecuniary or non-pecuniaryinterests. The code gives some guide as to whatconstitutes a pecuniary and non-pecuniary interest.Pecuniary interests can include assets andliabilities, income, gifts, rewards, sponsored traveland other benefits. Non-pecuniary interests caninclude allegiances to family and otherrelationships, involvement in interest groups,membership of political parties and holding aposition on a local authority.

Important Issues

• What type of interests should bedisclosed by public officials?

• Does the Code of Conduct provide asufficiently wide definition ofpecuniary and non-pecuniary interests?

3.4.3 Public Access

The declaration of interests by public officials isnot made public. Unlike Members of Parliament,local government members and officials, publicofficials simply declare their interests to aresponsible authority, usually their immediatesuperior. There is also no requirement for publicofficials to declare their interests to relevantbodies outside the public sector, with whom theymay be dealing.

Important Issue

• Should public officials be required tomake public declarations of theirinterests?

3.4.4 Administration, Penalties andEnforcement

Each department and agency of government isresponsible for administering the code. While thecode contains no specific penalties for breaches itdoes say that:

Public officers who fail to take adequate steps to avoidconflicts of interest may be guilty of misconduct and may beliable for prosecution and discipline under the CriminalCode, the Public Service Act [now the Public SectorManagement Act 1994] or individual agency legislation.(WAPSC, 1991: 5)

The Western Australian Criminal Code ActCompilation Act 1913 makes it illegal to attemptto bribe public officials such as public servants,judges and Members of Parliament. It is also anoffence for a public official to receive bribes. TheCriminal Code Act Compilation Act 1913 alsomakes it an offence for public officials to act inany matter, in which they have a direct or indirectpecuniary interest, to gain a private benefitwithout lawful authority or a reasonable excuse.The penalty for such a breach is imprisonment forthree years.

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Important Issues

• Is a Code of Conduct an appropriateway of avoiding conflicts of interest bysenior public servants?

• Who should be responsible forenforcing the disclosure scheme forsenior public servants?

• Are the penalties under the CriminalCode sufficient?

4. SUMMARY

In the past instances have been identified wherepublic officials have placed their private interestsover their public duty (Fitzgerald, 1989; Kyle,1994; Kyle, 1992). The WA Royal Commissionalso recognised the potential for conflicts ofinterest to subvert ‘public confidence ingovernment’ (Part II: 4-20).

Whatever procedures and laws are put in place toreduce the potential for conflicts of interest, theprivacy of public officials and their families alsoneed to be considered. If we are to have schemeswhich require the disclosure of private interests bypublic officials a good case has to be made that thebenefits of public disclosure to the public interestoutweigh the importance of preserving the privacyof public officials and their families.

REFERENCES

Australian Capital Territory, Chief Minister’sDepartment (1995) Code of Conduct for MinistersCanberra

Carney, Gerard (1991) ‘The Duty ofParliamentarians to Make Ad Hoc Disclosure ofPersonal Interests’ Public Law Review 2: 24 -43

Commonwealth of Australia, Committee ofInquiry Concerning Public Duty and PrivateInterest (Bowen Committee) (1979) Public Dutyand Private Interest: Report of the Committee of

Inquiry Established by the Prime Minister on 15February 1978 Canberra: AGPS

Electoral and Administrative Review Commission(EARC) (1990) Review of Guidelines for theDeclaration of Registrable Interests of ElectedRepresentatives of the Parliament of QueenslandBrisbane: EARC

Erskine, May (1989) Parliamentary Practice (21stedition) London: Butterworths

Kyle, Peter (1992) Inquiry into the City ofWanneroo Perth: Department of LocalGovernment

Kyle, Peter (1994) Inquiry into the Shire ofBoddington Perth: Department of LocalGovernment

New South Wales, Independent CommissionAgainst Corruption (NSW ICAC) (1991)Discussion Paper: Conflict of Interest and LocalGovernment Sydney

New South Wales, Independent CommissionAgainst Corruption (NSW ICAC) (1992) Reporton Investigation into Local Government, PublicDuties and Conflicting Interests Sydney

New South Wales, Joint Committee on the ICAC(1994) Discussion Paper on Pecuniary InterestProvisions for Members of Parliament and SeniorExecutives and a Code of Ethics for Members ofParliament Sydney

Okely, Bruce (1989) A Guide to ParliamentaryProcedure Perth: State Print

Polsinelli, Claudio (1990) ‘Conflict and theCommissioner: the Ontario solution to conflict ofinterest’ The Parliamentarian, Vol. LXXXI, No4: 240- 243

Public Service Commission (PSC) (1995)Guidelines on Official Conduct of CommonwealthPublic Servants Canberra: AGPS

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Queensland, Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1990) A Report of the Electoral andAdministrative Review Commission on its Reviewof Guidelines for the Declaration of RegistrableInterests of Elected Representatives of theParliament of Queensland Brisbane

Rozzoli, K. (1992) ‘Conflict of Interest, Codes ofConduct and the Responsibilities of Members ofParliament’ Legislative Studies Vol. 6, No. 2: 8-12

South Australia, Department of Premier andCabinet (1994) Cabinet Handbook Adelaide

United Kingdom, Committee on Standards inPublic Life (Nolan Committee) (1995) ‘Standardsin Public Life’ Volume I: Report London: HMSO

Western Australia, Department of LocalGovernment (1995) Local Government in WesternAustralia; A Councillor’s Guide (6th edition)Perth

Western Australia, Legislative Assembly (1991)Standing Orders (Reprinted with amendments andannotations) Perth: State Print

Western Australia, Legislative Council (1994)Standing Orders Perth: State Print

Western Australia, Parliamentary StandardsCommittee (1989) (Beazley Committee) Report ofthe Parliamentary Standards Committee Perth

Western Australia, Public Service Commission(WAPSC), Michael Wood (WA, Public ServiceCommission) (1991) Circular to Chief ExecutiveOfficers No. 9 of 1991: Code of Conduct -Conflicts of Interest Provisions Perth

Western Australia, Royal Commission intoCommercial Activities of Government and otherMatters (WA Royal Commission) (1992) ReportPart I (Volumes 1-6); Part II, Perth

Williams, Sandra (1985) Conflict of Interest: TheEthical Dilemma in Politics Aldershot: GowerPublishing Limited

CASES

Wilkinson v Osborne (1915) 21 CLR 89.

LEGISLATION

Criminal Code Act Compilation Act 1913Local Government Act 1934 (S.A.)Local Government Act 1995Members of Parliament (Financial Interests) Act

1992Members of Parliament (Register of Interests) Act

1978 (Vic.)Official Corruption Commission Act 1988

Page 1



GO V E R N M E N T

WESTERN AUSTRALIA

COG







DIS

CU

SS

ION

PA

PE

R N

o.

14March 1996

Public SectorOfficers on Boardsand Committees

Specified Matters: 5 & 8

AdministrativeAppeals Tribunal

Page 2

Part II of this paper covers Specified Matter 8which is about the appointment of officersemployed in the public sector to WesternAustralian Boards and Committees.


SUBMISSIONS







PREFACE


The Specified Matters, which are set out in theFirst Schedule of the Commission on GovernmentAct 1994, provide the initial focus of theCommission’s inquiries. The relevant issues,however, cannot be addressed in a vacuum. TheCommission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This appliesalso to any matters which may become part of theCommission’s inquiries. We have concluded thatit is necessary to address the context in which theSpecified Matters have arisen the historical,contemporary and topical circumstances andevents which surround them and their relevancefor the future.



Part I of this paper deals with Specified Matter 5concerning the functions and terms of reference ofan Administrative Appeals Tribunal and itsrelationship to the respective roles of the judiciaryand the executive. The initial task of theCommission is to inquire into whether anadministrative appeals body should be establishedin this State.

Page 3

Part II: PUBLIC SECTOR OFFICERS ONBOARDS AND COMMITTEES

1. INTRODUCTION



3.1 Conflict of Duty and MinisterialDirection

3.2 Codes of Conduct - Duties andLiabilities

3.3 Selection and Appointment3.4 Remuneration3.5 Accountability

4. SUMMARY

REFERENCES

Part I: ADMINISTRATIVE APPEALSTRIBUNAL

1. INTRODUCTION

1.1 Specified Matter 5

Specified Matter 5 requires the Commission onGovernment (COG) to inquire into:

The functions and terms of reference of an administrativeappeals tribunal and its relationship to the respective roles ofthe judiciary and the executive.

Over the past 50 years the growth of thegovernment sector has resulted in legislationwhich has vested in ministers, public sectorofficers and government agencies extensivediscretionary decision making powers which havethe capacity to greatly affect the life and choicesof citizens. In Western Australia there are wellover 1,700 statutes and regulations currently inforce including local council by-laws. The powersand duties exercisable by public authorities under

CONTENTS

Part I: ADMINISTRATIVE APPEALSTRIBUNAL

1. INTRODUCTION

1.1 Specified Matter 51.2 An Accountable Administrative

System1.3 Administrative Appeals Overseas and

in Australia


2.1 Administrative Appeals in WesternAustralia

2.2 Recent Developments


3.1 Decisions Subject to AdministrativeAppeal

3.2 Reasons for Administrative Decisions3.3 Internal Appeals3.4 External Appeals

3.4.1 The Need3.4.2 How Decisions May be

Appealed3.4.3 An Administrative Appeals

Tribunal for Western Australia3.4.4 Procedures3.4.5 Membership3.4.6 Accountability3.4.7 Two-Tier Appeals

3.5 Further Appeals3.6 Review of the Administrative System

4. SUMMARY

REFERENCES

Page 4

It is important for a person affected by anadministrative decision to understand the basis forthe decision and for the decision maker todemonstrate that the decision was reasonably andsoundly based. This can be done by the decisionmaker providing reasons for the decision. It has,however, never been a principle of the commonlaw that reasons should be given for decisions.Reasons make administrative appeals moreaccessible by assisting members of the communityto understand the basis for a decision and make aninformed choice whether to take any furtheraction. Another benefit noted by theAdministrative Review Council (ARC) is that bybringing decision making into the open ‘theobligation to provide reasons encourages betterdecision making and makes decision-makers moreaccountable’ (1995: 68). The WA RoyalCommission put its viewpoint on this issue morestrongly:

The right to reasons should be regarded as basic in ademocratic society. For the individual citizen it is the mostdirect and important accountability measure where anadministrative decision affects his or her own interests.(WA Royal Commission, 1992: II 3.4.6)

The WA Royal Commission also acknowledgedthat Western Australians had inconsistent andrestricted rights of appeal against administrativedecisions. It concluded that:

Apart from the Ombudsman, the citizens of the State havevery limited avenues open to them to call the officials andagencies of government to account where the decisions areadverse to them individually. (WA Royal Commission,1992: II 3.3.1)

After canvassing the recommendations made bythe Western Australian Law Reform Commission(WALRC), the WA Royal Commission expressedconcern about the proposal that an administrativeappeals system should be located within theSupreme Court and Local Court and shouldinvolve judges and magistrates in appealadjudication:

In essence, this would result in members of the judiciaryengaging in a review of the merits of various administrativedecisions made by public officials, including ministers ...There is a danger in such a process that the constitutionalvalues inherent in a separation of judicial and executivepower could be compromised ... In consequence, we invite

these laws are not unlimited or beyond challenge.Public authorities may abuse their powers or maydefault in the exercise of their duties. The citizen’sability to seek and obtain adequate redress,however, has not always kept pace with thegrowth of administrative power. This of itselfgives rise to the potential for corrupt, illegal orimproper conduct in the public sector.

In Western Australia administrative decisionmaking has not always been accompanied bysufficient checks and balances. Both overseas andelsewhere in Australia, safeguards have beenintroduced, or recommendations made, attemptingto provide accountability and achieve fairness andopenness for citizens affected by administrativedecisions.

There are three main ways in which a person canhave a decision independently reviewed. Firstly, iflegislation specifically provides for it, there maybe an administrative appeal, that is, a review of theappropriateness of the decision. Another way,under the common law, is a review of thelawfulness of the decision by the Supreme Court.According to the WA Royal Commission into theCommercial Activities of Government and OtherMatters (WA Royal Commission), the proceduresfor this type of review, known as judicial review,could be described as ‘museum pieces’ (1992: II3.6.1). The third main avenue of redress is aninvestigation by an ombudsman. Theappropriateness of a decision is determined on itsown merits and not on a technical or legal basis.

Decisions may also be reviewed by parliament andministers. This informal method of appeal wasconsidered by the Commonwealth AdministrativeReview Committee (Kerr Committee) to have‘limited effectiveness’ (1971: 7). The Hon. JusticeMathews, President of the CommonwealthAdministrative Appeals Tribunal (CommonwealthAAT) also agrees that the considerableadministrative reforms introduced by theCommonwealth over the last 20 years have:

reflected an admission by the government that the doctrine ofministerial responsibility, by itself, was not a sufficient checkon administrative actions. (1994: 2)

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consideration to the adoption of the separate structure foradministrative appeals. (WA Royal Commission,1992: II 3.5)

1.2 An Accountable Administrative System

In 1994, the Access to Justice AdvisoryCommittee (Sackville Committee Report)identified what it considered to be the fundamentalrequirements for an efficient, effective andaccountable administrative justice system:

• a comprehensive, principled, accessible andindependent system of merit appeal ofadministrative decisions;

• a requirement that government decision-makers inform persons of their rights ofadministrative appeal;

• a simplified judicial review procedure;

• a right of persons affected by decisions toobtain reasons for decisions;

• broad rights of access to information held bygovernment; and

• an adequately resourced ombudsman.

In addition, both Bayne (1989) and theQueensland Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1995) suggest a further requirement, namely thecreation of a body which would monitor theworkings of administrative law, determine thedecisions which should be subject to appeal on themerits and make proposals for furtheradministrative reform.

The Kerr Committee, which recommended theconsiderable reforms to the system ofadministrative review introduced by theCommonwealth of Australia, formed the opinionthat:

The basic fault of the entire structure is, however, that reviewcannot as a general rule ... be obtained ‘on the merits’ - andthis is usually what the aggrieved citizen is seeking. (KerrCommittee, 1971: 20)

According to the Kerr Committee, the majorpillars to an administrative law system in Australiaare that it be comprehensive, accessible to thepublic, inexpensive, focussed on substantive andnot procedural issues and based upon adequatedisclosure and access to information.

1.3 Administrative Appeals Overseas and inAustralia

In the United Kingdom (UK), the United States ofAmerica (USA), some Canadian provinces andNew Zealand (NZ), reform of the administrativeappeals system has produced codes of procedurefor administrative appeals as well asrationalisation of the numerous appeal tribunals inthose countries.

In the UK the, then, Tribunals and Inquiries Act1958 (UK) gave effect to the recommendations ofthe Report of the Committee on AdministrativeTribunals and Enquiries (Franks CommitteeReport) (1957) by establishing a Council onTribunals to supervise and review existingtribunals. Parliament is required to consult withthe Council whenever it proposes to establish anew tribunal. The Franks Committee concentratedits recommendations on rectifying proceduralanomalies in existing tribunals and rejected aproposal to create a general administrative appealstribunal.

The USA has also preferred not to establish ageneral administrative appeals tribunal. Instead,under the Administrative Procedure Act 1946(USA) the procedures of the variousadministrative appeals tribunals have beencodified and the review of process is overseen bythe USA Administrative Conference.

Likewise, NZ has given attention to developing acode of procedures for existing and new tribunals.Following the report of the Public andAdministrative Law Reform Committee in 1968,NZ enacted the Judicature Amendment Act 1968(NZ). This legislation established anAdministrative Division of the Supreme Courtwhich hears appeals from certain tribunals, as wellas dealing with the administrative appeal workalready undertaken by the Supreme Court under

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various pieces of legislation. There is power toappoint lay people, although judges head theDivision.

At the federal level in Australia, a number ofreports have recommended reforms in the systemof administrative review. In 1971, the KerrCommittee rejected the UK practice ofestablishing specialist tribunals and, instead,recommended the establishment of a generaladministrative appeals tribunal, separate from thecourts. The Kerr Committee was of the view that aseparate Administrative Appeals Tribunal (AAT)was necessary because the CommonwealthConstitution required the separation of powersbetween the judiciary, executive and parliament.In addition, the Committee considered a court wasnot the most appropriate body to hearadministrative appeals.

In response to the Kerr Committee and subsequentreports, the federal government has established:

• a general Administrative Appeals Tribunaland an Administrative Review Council tooversee the administrative process by theAdministrative Appeals Tribunal Act 1975(AAT Act (Cwlth));

• a codification and extension of judicial reviewpractices in the Administrative Decisions(Judicial Review) Act 1977 (AD(JR) Act(Cwlth));

• a Commonwealth Ombudsman;

• freedom of information legislation; and

• a requirement for the provision of reasons byadministrative decision-makers under both theAAT Act (Cwlth) and the AD(JR) Act(Cwlth).

Whilst the reforms have been generally praised,they have also received some criticism:

The Kerr Committee’s vision of a system of administrativereview was heavily lawyer orientated and heavily ruleorientated ... It was very much the sort of package that itcould be expected that a committee of lawyers wouldproduce. (Pearce, 1989: 18)

Of the other states of Australia, only Victoria andthe Australian Capital Territory (ACT) have ageneral Administrative Appeals Tribunal which isseparate from the courts. Victoria established itsgeneral AAT in 1984 by the AdministrativeAppeals Tribunal Act 1984 (Vic.) although it hasbeen commented that ‘its jurisdiction remainsfairly limited’ (Sackville Report, 1994: 331). TheACT introduced its general AAT in 1989. Both theACT and Victoria have legislated for people tohave the right to obtain reasons for decisionswhich are the subject of administrative appeal tothe general AAT.

In New South Wales, there is an AdministrativeLaw Division of the New South Wales SupremeCourt. The New South Wales Law ReformCommission recommended that a separate PublicAdministration Tribunal be set up as part of anattempt to rationalise the appeal system. The LawReform Commission of the Northern Territory hasalso recommended the establishment of a generalAAT.

In Queensland, the Electoral and AdministrativeReview Commission (EARC, 1993) recommendedthe creation of a Queensland IndependentCommission for Administrative Review (QICAR).It was proposed that QICAR should not only be ageneralist administrative appeals body but alsohave a general advisory role in relation toadministrative decisions. This latterrecommendation of the EARC has been criticisedby the Queensland Parliamentary Commissionerfor Administrative Investigations (QueenslandOmbudsman) (1994: 9-11) and the QueenslandParliamentary Committee on Electoral andAdministrative Review (PCEAR) (1995) whichare of the view that it blurred the functions of anadministrative appeals body, an ombudsman andan administrative review body. The PCEARaccepted that the roles of these three entitieswould have some overlap, but argued that theyneed to remain separate.

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2.1 Administrative Appeals in WesternAustralia

The administrative appeals system in WesternAustralia is characterised by a proliferation oftribunals which have been criticised for having noscheme or pattern, no common objectives orprinciples and no uniformity of procedures. Thenumber of tribunals is increasing. The WesternAustralian Law Reform Commission (WALRC)reported that in 1981 there were approximately257 appeal provisions in various pieces oflegislation to appeal bodies numbering more than43. In 1994, the Tribunals Review DiscussionPaper prepared as part of current review of theState’s independent tribunals stated that, so far, anestimated 360 appeal provisions in various Acts toapproximately 54 diverse appeal bodies had beenidentified.

The WALRC (1982) recognised the followingshortcomings in the Western Australian system:

• there were too many and varied rights ofappeal;

• there were inconsistencies in rights of appealfrom decisions of similar bodies;

• there was no consistent or simple code ofprocedure; and

• there was no provision for ultimatedetermination of questions by the SupremeCourt.

Other criticisms identified that, following someadministrative decisions: there are no appeal rightsat all; people are not made aware of any appealrights that do exist; and, some appeals systems arenot easy to understand. There is also a lack ofconsistency in the composition of tribunals and insome instances, ministers themselves mayundertake appeals. Constitutionally, both theFranks Committee in the UK (1957: 25) and theEARC (1993: 2.101) do not consider this to bedesirable. Further, there is no general right for a

person affected by an administrative decision toobtain reasons for that decision.

2.2 Recent Developments

In 1982 the WALRC considered that a logical andcodified administrative appeals system could becreated within Western Australia’s existing courts.This was seen as advantageous because thejudiciary was independent of the executive arm ofgovernment and therefore would be seen by thecommunity as being independent of the decision-makers.

To achieve this proposal, it recommended that anadministrative law division be established in theSupreme and Local Courts to determineadministrative appeals with a number of limitedspecialist tribunals to remain.

The administrative law divisions of both courtswould hear administrative appeals ‘on the merits’by being able to ‘stand in the shoes’ of the originaldecision-maker.

Appeals on a matter of law would be dealt with bythe Supreme Court. The WALRC also suggested acouncil be established to review the administrativejustice system, that a uniform code of procedurebe established and that there be legislation toobtain reasons for an administrative decision.

The recommendation of the WALRC that ageneralist administrative appeals body beestablished within the courts has been criticised aspromoting formality and being contrary to thedoctrine of separation of powers. The WA RoyalCommission also expressed concern about thatproposal, preferring the adoption of a separatestructure for administrative appeals, outside thejudiciary. The WA Royal Commissionrecommended that legislation requiring the givingof reasons for administrative decisions should beenacted as a matter of urgency.

In a press statement in 1992 the then AttorneyGeneral, the Hon. Joe Berinson, MLC QC,accepted the WALRC recommendations inprinciple but expressed concern about legislationrequiring reasons to be given for administrativedecisions, stating:

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Experience in other jurisdictions suggested the additionalworkload and the cost of implementing the recommendationwould be out of proportion to the benefit. (1992: 2)

The WA Royal Commission summed up the ‘stateof the administrative system’ in Western Australiaas follows:

It has grown in a fashion of a coral reef, the new simplybeing added to the old. Some rationalisation has occurred.But much which has passed for reform has been designedmore to further the managerial objectives of government thanto give organisational integrity to the system itself.(1992: II 6.1.2)

The WA Royal Commission was of the view that‘a complete review of its structure andorganisation is required’ (1992: II 6.1.2).Nicholson (1994) noted that the analysis of theexisting tribunals by the WALRC would requirean updated review. In that same year, the thenAttorney General, the Hon. Cheryl Edwardes,MLA, issued terms of reference for a review oftribunals in Western Australia. That review hasissued a Tribunals Review Discussion Paper buthas yet to report. The Legislative AssemblyStanding Committee on Government Agencies(SCGA) has recently stated:

the Committee does believe that the time has arrived when amore coherent approach can profitably be adopted to thequestion of administrative decision making and review.(SCGA, 1994: 19)


3.1 Decisions Subject to AdministrativeAppeal

It has been suggested that not all administrativedecisions should be the subject of administrativeappeal. The Electoral and Administrative ReviewCommission (EARC) (1991), for example,although acknowledging that all decisions couldbe reviewed by the judiciary for their lawfulness,suggested that decisions made by ministers or bythe Executive Council, should not be subject toadministrative appeal.

The EARC suggested the following initial criteriato determine whether a decision should be thesubject of administrative appeal:

• the rights or interests of persons must be specificallyaffected to a significant extent by an exercise of astatutory power; and

• the decision in question must be of a substantive natureand not collateral or preliminary to the primarydecision.

If the initial criteria for merits appeal exist, thenthe EARC indicated that more practical factorsshould be considered. The Western AustralianLaw Reform Commission (WALRC) classified thematters about which decisions may be made andwhich are presently subject to appeal at both stateand local government levels under the followingheadings (1982: 7):

1. Matters affecting public servants;2. Rates and taxes;3. Licences, authorities, permits or duties concerning -

(a) occupations and commercial activities;(b) premises;(c) the manufacture and control of foodstuffs;(d) (i) land and its uses;

(ii) conservation and the environment;(e) other matters;

4. Medical;5. Compensation;6. Industrial;7. Miscellaneous.

With the increasing use by government of theprivate sector to perform functions on its behalf,consideration needs to be given as to whetherdecisions made by contractors on behalf ofdepartments and statutory authorities should alsobe the subject of administrative appeal.

Important Issues

• What decisions should be the subject ofadministrative appeal?

• What criteria should be applied todetermine whether a decision should bethe subject of administrative appeal?

• Should administrative decisions madeby private contractors of local councils,statutory authorities and departments beopen to appeal?

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3.2 Reasons for Administrative Decisions

In 1986, the High Court in Public Service Boardof New South Wales v Osmond (1986) 159 CLR656 held that there was no common law duty ondecision-makers to give reasons. Legislation bythe Commonwealth, Queensland, the AustralianCapital Territory and Victoria has provided forpublic sector decision-makers to give reasons fortheir decisions. Both the WALRC and the WARoyal Commission recommended that legislationbe introduced to provide this right to the people ofWestern Australia, but no general right has as yetbeen enacted. According to Pearce:

It does not seem to me to be unreasonable for a personaffected by a government decision to be furnished with astatement of the basis on which the decision was reached.The need to prepare such a statement also has the advantageof focussing the administrator’s attention more closely on thejustification for the decision. This cannot help but improvedecision making generally. (1989: 24)

The obligation to provide reasons may well bevery costly, and some have argued that it isappropriate to distinguish between the provision oftwo kinds of reason statements. One kind is a shortstatement of reasons which would identify thedecision made, the statutory or other power beingexercised and the major grounds upon which thatpower is exercised in the particular case. The otherkind is a long statement of reasons, stating thefindings of material facts, the evidence uponwhich those findings were based and the reasonsfor the decision.

Important Issues

• Should legislation in Western Australiaprovide for decision-makers to givereasons for their decisions?

• Should reasons for decisions beprovided only in response to an appeal?

• Should there be restrictions on the rightto be provided with reasons?

3.3 Internal Appeals

The Administrative Review Council (ARC) hasexpressed the view that any discussion ofadministrative appeals must necessarily involveconsideration of the agency’s internal reviewprocesses:

It is essential to look at the relationship of the Tribunal to theinternal review processes to comment on the processes andprocedures of the tribunals because what happens in anagency in response to appeals may influence clients’prospects of reaching an external tribunal and affects thedesign of the tribunals system. (1994: 1.20)

Internal review is the process whereby an appealagainst an administrative decision made by agovernment agency is undertaken within thatgovernment agency. Internal appeal offers theclient the possibility for timely and inexpensiveredress within an agency. It may also operate as afilter before matters go forward to external appeal.Another advantage of internal review is that aperson can be notified of their rights and any timerestraints on the appeal. In this State, whilst somegovernment agencies provide for internal review,such as the Homeswest Panel, other agencies haveno internal review procedures.

Although the internal review process has itsadvantages, it can lack, and be perceived to lack,independence. The Electoral and AdministrativeReview Commission (EARC) pointed out thatagency review would be:

perceived as more susceptible to political imperatives, andbureaucratic and budgetary pressures, than a body outside of,and independent of, the government agency concerned,which can decide cases independently of any direction orcontrol by the government agency. These considerationssuggest that it would generally be unwise to provide forinternal review as the sole means of appeal, except perhapswhere the arguments in favour of external review are weak.(EARC, 1991: 38)

Curtis considers that administrative decisionsshould not be appealed to an external agency ‘untilthe administrative process within an agency hashad a reasonable chance to take corrective action’(1989: 67).

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Important Issues

• Should internal review ofadministrative decisions be available?

• Should a person be obliged to appealinternally before taking their appealexternally?

• Should a person affected by a decisionbe notified of appeal rights?

• Should there be a time limit on appealsagainst administrative decisions?

3.4 External Appeals

3.4.1 The Need

The Electoral and Administrative ReviewCommission (EARC) argues that people shouldhave access to an independent system of appealingagainst an administrative decision which affectsthem:

Citizens expect that government regulation touching onimportant rights and interests will be tempered by theprovision of effective opportunities to challenge any errorswhich they think have been made by government agencies orofficials. (EARC, 1991: xiv)

Another view is that an independent externalappeals system of administrative decisions wouldpromote ‘wider values’ (1991: xiv), for exampleby enhancing public acceptance of, and confidencein, the processes of government administration.

The expense, time delay and complexity of asystem of administrative appeals of governmentdecisions are often raised as disincentives. TheEARC points out that a system of administrativeappeals must be seen in the ‘total cost of theadministration of government programs’(1991:xiv) and the Administrative Review Council(ARC) has commented that:

any criticism of the absolute or relative costs of tribunalsmust bear in mind that there is a cost associated with anyway of handling citizens’ grievances against government. Inthis respect, the safety valve role of an effective tribunal

system is significant. In other areas of public administrationwhere there is no simple and accessible way for citizens tochallenge government decisions, cumulative pressure ofunresolved grievances have been known to culminate incommittees of inquiry or Royal Commissions, the budgetsfor which often far exceed the annual running costs of entirereview mechanisms. (ARC, 1994: 7.20)

Important Issue

• Should there always be a right ofappeal against an administrativedecision to an independent externalbody and who should have that right?

3.4.2 How Decisions May be Appealed

An appeal from an administrative decision caninvolve either a rehearing of a matter or a freshappeal where new evidence can be presented. If amatter is reheard, the body hearing the appealreviews only the evidence considered in theoriginal decision or can be limited tocircumstances where there has been an error oflaw.

In Western Australia various approaches are takento hearing appeals from administrative decisions.The ARC supports the fresh appeal approach:

It is sometimes argued that when a decision is reviewed, onlythat evidence which was available to the original decisionmaker should be considered ... However, it is now wellestablished that merits review tribunals should consider allthe evidence available to them at the time they undertaketheir review, including information that may not have beenavailable to the original decision-maker. (ARC, 1994: 3.37)

There are also problems for appeals relating todecisions been made on the grounds ofgovernment policy. In 1979, Justice Brennan heldin Re Drake and Minister for Immigration andEthnic Affairs (No. 2) (1979) 2 ALD 634 thatalthough the Commonwealth AAT shouldnormally apply the relevant ministerial policywhen reviewing decisions made on the basis ofthat policy, it was not necessarily obliged to do soand should not do so if there were cogent reasonsfor taking such a course. For example, where thepolicy itself was unlawful or its application wouldwork an injustice in the particular case. Curtis

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argues, however, that ‘decisions involvingsignificant policy consideration’ (1989: 61) shouldnot be within the jurisdiction of a general AAT.

Important Issues

• Should appeals involve a rehearing or afresh hearing?

• Should an external appeal have thepower to consider an appeal on adecision based on government policy?

3.4.3 An Administrative Appeals Tribunal forWestern Australia

A number of options are possible for anadministrative appeals body in Western Australia.Figure 1 sets out some of these options. Like themodel adopted in the UK, the various specialisttribunals could remain, with a central councilsupervising and reviewing procedure to ensure aconsistent approach.

Alternatively, there could be a generaladministrative appeals body, which could, ifnecessary, consist of separate divisionsspecialising in particular areas of publicadministration. Some specialist tribunals couldremain. If a general administrative appeal bodywere the preferred option, it could be part of theexisting court structure, as suggested by theWestern Australian Law Reform Commission(WALRC) or even a new Court. Alternatively, aseparate tribunal such as the Commonwealth AATcould be established outside the judiciary. Anotherapproach is for the State Ombudsman to havepower to make decisions about administrativeappeals, rather than the current power to onlymake recommendations.

The Electoral and Administrative ReviewCommission (EARC) (1991) listed the mainadvantages claimed for specialist tribunals:

• expert members can be appointed, particularlyfor technical and complex subjects;

• an appeal can be dealt with more rapidlybecause of the expertise in the tribunal;

• greater flexibility in practices and proceduresrelevant to the subject area;

• there would be less need for lawyers aspresiding members and an adversarialapproach would be less likely to be adopted;and

• procedural conformity for the sake of it couldbe resisted, especially for specialised subjects.

On the other hand, a general administrativeappeals tribunal offers:

• an efficient consolidation of existingtribunals;

• a means of accommodating rights or interestsnot considered to warrant establishing aspecial tribunal;

• a greater stature and visibility in thecommunity, which can help recruit goodpersonnel and enhance public awareness;

• reduced elitism arising from expert membersof specialist tribunals; and

• less confusion by members of the publicabout lodging an appeal.

There are criticisms cited for a generaladministrative appeals division within the courtsystem. An important issue is the doctrine ofseparation of powers. As Marquet writes:

the doctrine of separation of powers into legislative,executive and judicial branches predicates the system ofmutual checks and balances. (1990: 445)

While Western Australia is not constitutionallyobliged to separate the executive and judicialfunctions, many argue that the principle should beadhered to. His Honour Judge Thomas, inopposing the WALRC proposal, has stated:

the courts, however, have never exercised review on themerits of decisions of people in the executive, and that has

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been for a very good reason ... separation of powers and theimportance of that cannot be over emphasised. (as quoted inBarker, 1993: 7)

By placing administrative appeals within thejudicial system, formality and an adversarialapproach could develop. The CommonwealthAAT, despite being separate from the courts, hasbeen criticised for its ‘adversarial nature’ (Curtis,1989: 57). Advocates for an administrativeappeals body within the courts argue that it wouldbe cheaper and would be seen as beingindependent of the executive.

Another possibility is to extend the power of theState Ombudsman to make decisions which arelegally binding. This could reduce duplication.Such a proposal, however, has been widelycriticised. The Standing Committee onGovernment Agencies comments that ‘theinability of the ombudsman to require, rather thanrecommend, remedial action is seen by mostcommentators as a strength’ (1994: 19). TheQueensland Parliamentary Committee on Electoraland Administrative Review (PCEAR) alsoconcurred with the EARC’s view that the option

of an ombudsman with determinative powers foradministrative appeals is ‘somewhat ill conceived’(1995: 12).

Important Issues

• Should the current system of specialisttribunals in this State remain?

• Should there be a generaladministrative appeals body?

• Should a general administrative appealsbody be separate from the courtsystem?

• If there were a general administrativeappeals body should it have specialistdivisions or consist of only one generaldivision?

• Should administrative appeals be dealtwith by the State Ombudsman?

Figure 1: Separation of Powers and Administrative Decisions

JUDICIARY EXECUTIVE PARLIAMENT

NewseparateCourt

Divisionof an

existing Court

State Ombudsman

with expanded powers

Decision

AppealsAppeals

New Administrative

Appeals Tribunal

New Administrative

Appeals Tribunal

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3.4.4 Procedures

The advantages claimed for an administrativeappeals system are that it is quick, inexpensive,informal, independent, flexible, expert andaccessible (Hotop, 1985). How these advantagescan best be achieved in practice is debatable.

Accessibility includes factors such as: cost to theapplicant; rights to appeal; the location of registryand facilities; assistance for appellants;application fees and consistency in processes andprocedures. According to the Electoral andAdministrative Review Commission (EARC):

the degree to which the formality and complexity of tribunalprocedures intimidate or disadvantage an unrepresentedapplicant for review, or add unnecessarily to the cost anddelay inherent in pursuing an appeal right, constitutes one ofthe most significant factors affecting the accessibility oftribunals to ordinary citizens. (EARC, 1991: xv)

An important issue is whether legal representationshould be permitted. Imposing settings andceremonies, often associated with courts, can beintimidating and put an applicant on an unequalfooting with a government agency, particularlywhere government agencies, which are regularlyparties before administrative appeal tribunals, maydevelop amongst their own personnel skills andexpertise in representing themselves. In the viewof the EARC, the most significant frustrations toinformality, speed, cheapness and accessibility‘flow from adherence to the procedures of theadversary system’ (1991: xv). A court-styleadversarial system involves professional advocatesleading evidence and cross examining witnesses.The courts leave it up to the parties to present theircases in the best light using rules of evidence andcross examination rather than, as Dwyer (1991)suggests, taking control of the appeal process byusing investigatory/inquisitorial powers.

Formality, according to Gill (1989), tends to:

• intimidate and discourage the unrepresentedapplicant;

• place undue emphasis on formal hearings atthe expense of pre-hearing conciliation andmediation; and

• reduce the scope and initiative for improvingappeal process.

Denying applicants legal representation before anadministrative appeals body could disadvantagesome applicants. The decisions of anadministrative appeals body moreover are likely tobe subject to judicial review for errors of law, andit therefore should have the benefit of legalargument. In any event, if an administrativeappeals body takes firm control of proceedings,formality and adversarial behaviour can becontrolled.

Many courts and tribunals use other methods ofresolving disputes, rather than full hearings whichare the most expensive and time consuming wayof resolving disputes. An ideal dispute resolutionsystem, according to the EARC, should bedesigned:

to concentrate most of its resources on informal methods ofconciliation/ negotiation, mediation/ facilitation and othertechniques of what has come to be known as ‘alternativedispute resolution’ (ADR), at an early stage of theproceedings, with the object of ensuring that only the mostintractable of cases pass through this filter to the stage offormal adjudication. (EARC, 1991: 52)

Criticisms of mediation and other alternativedispute resolution techniques have been made. DeMaria (1991) argued that mediation, rather thanresolving disputes and dealing with the matter in aconstructive way, tended to manage the conflictrather than determine it. The AdministrativeReview Council (ARC) raised the followingconcerns about mediation in its Discussion Paper:

if an agency is able to make a concession or exercisediscretion at tribunal mediation, then it should have beenable to do so at an earlier stage or review ... Anothercriticism is that mediation can risk muddling several issuesand could lead to an applicant trading off some rights inexchange for other concessions. Also mediation processeswork best when the parties are equal, but in situations ofpower imbalance, they favour the powerful party, usually thegovernment agency. (ARC, 1994: 5.82)

The greater the formality of process, the moredelay is likely. The Commonwealth AAT wasintended to provide a quick method ofadministrative appeal. However, it has beenwidely criticised for its formal approach. Pearce

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wrote that ‘the differences between the AAT and acourt are becoming less and less apparent’(1989:22). The ARC also points out problems withformality and delay:

the longer the gap between the original decision and thetribunal decision, the more likely the agency will feeltribunal feedback is of marginal value. (ARC, 1994: 8.28)

Some commentators argue that an application feeto commence an administrative appeal isnecessary to deter the frivolous and vexatious. TheCommonwealth Committee on AdministrativeDiscretions (Bland Committee) (1973), however,recommended that there ought to be no depositrequired when a person initiated an application(Pearce, 1989). Further, the Committeerecommended that a person should not bear thecosts of the agency unless the application was notjustified. Where a decision more favourable to theapplicant was made, it may be appropriate for theapplicant’s cost to be borne by the governmentagency. Not only are direct costs of administrativeappeals relevant, but consequential expensesincurred by an applicant such as travel,interpreter’s costs and childcare can be a deterrent.

Important Issues

• Should there be limitations on legalrepresentation of applicants andgovernment agencies before anadministrative appeals body?

• In what circumstances might non-legalrepresentation be more appropriate?

• Should representation be left to thediscretion of an administrative appealsbody?

• Should an administrative appeals bodygenerally adopt a more investigatoryapproach to determining an appeal?

• Should hearings and decisions of anadministrative appeals body be open tothe public?

• Should an administrative appeals bodyadopt alternative dispute resolutionmethods?

• Should there be an application fee forlodgement of an administrative appeal?

• Should an application fee be a tokenamount or reflect actual cost of theappeal?

• Would application fees be a significantbarrier to access to an administrativeappeal or would application fees deterfrivolous or vexatious applicationsonly?

• Should the applicant be required to paythe costs of the government agency ifthe applicant’s appeal was unsuccessfulor should each party bear their owncosts?

3.4.5 Membership

Membership of existing Western Australianappeal bodies varies as to number; their term andtenure; whether full or part time; qualifications;and manner of appointment. Many tribunalsrequire the chairperson to be a lawyer. Othersrequire the chairperson to be a judge or magistrate.

The Commonwealth AAT is comprised ofpresidential members, who must be lawyers orjudges, and ordinary members with specialistexpertise. The Western Australian Law ReformCommission’s (WALRC) proposal was for anadministrative law division of the Local andSupreme Courts to be headed by judges andmagistrates, with allowance made for appointmentof some lay members.

The Bland Committee considered that thechairpersons of tribunals should be legallyqualified, but not judges, because they:

must not be addicted to the adversary process and desirablythey need wide experience of administration oradministrative law. (Bland Committee, 1973: 1.3.6)

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A tribunal hearing appeals about administrativedecisions could be made up of a cross section ofpeople from the community. Others suggest thatmembers with specialist skills could make up atribunal panel and that part time membership isdesirable. The arguments against both part timeand non-legal members include: ‘greatercomplexity of scheduling hearings, decreasedchance of consensus and increased costs’ (ARC,1994: 3.101).

The term and manner of appointment are also thesubject of differing views. The Joint SelectCommittee on Tenure of Appointees toCommonwealth Tribunals (1989) recommendedthat senior members of tribunals should beappointed to an age limit of 65 or 70. On the otherhand, a New Zealand Legislation AdvisoryCommittee (1988) considered that a generalappointment for a term of three years should besufficient. According to Bayne ‘these differencesof approach to the question of tenure point out theuncertainty about just how tribunals fit into oursystems of government’ (1990: 497).

Important Issues

• Should the chairperson of an AAT be amember of the judiciary or magistracyor have legal qualifications?

• Should members of an administrativeappeals tribunal be comprised of fulltime or part time members or a mixtureof the two?

• Who should appoint members of anAAT?

• Should only one member of an AAT beable to hear an administrative appeal?

• Should there be specialist members ofan AAT?

3.4.6 Accountability

An Administrative Appeals Tribunal (AAT) canenhance the government’s accountability to thepeople. Nonetheless, an independentadministrative appeals body, free fromgovernment control and exercising considerablepower, may require special measures to ensure itoperates in an open, fair and transparent manner.Curtis (1989) considers that performanceindicators are necessary to assess an AAT’sefficiency and effectiveness.

Important Issues

• What accountability measures shouldapply to an AAT in Western Australia?

• To whom should an AAT and othertribunals report and be accountable?

• What type of information should anAAT and other tribunals collect andpublish about their operations?

3.4.7 Two-Tier Appeals

A body, hearing an administrative appeal, willgenerally only be subject to appeal on a questionof law. In the Commonwealth administrativeappeals system, however, two-tier administrativeappeals tribunals have been established. Appealsagainst administrative decisions in the federalareas of veterans affairs and social security mustfirst be appealed to an external tribunal whichspecifically deals with appeals in those areas,before an appeal is able to go to theCommonwealth AAT.

The Administrative Review Council (ARC) is ofthe view that cases should not come directly to thegeneral AAT without passing first through a lowerlevel tribunal or an internal review process.O’Connor comments that a two tier system ofexternal administrative appeal achieves the twinobjectives of providing:

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an adequate standard of justice in all cases and efficiency atthe lowest possible cost to the community in terms of time,money and personal convenience. (O’Connor, 1993: 4)

On the other hand, Curtis considers that ‘a two tiersystem is a luxury’(1989: 65).

Important Issues

• Should a two-tier appeal system beavailable for all, or only some,administrative decisions?

• Should a two-tier appeal system beentirely external or should the first tierbe an internal appeal?

3.5 Further Appeals

An appeal from one tribunal to anotheradministrative appeal tribunal could involve acomplete reconsideration by the second tribunal ofthe decision in question.

An appeal lies from the Commonwealth AAT tothe Federal Court of Australia on a question oflaw. The Western Australian Law ReformCommission (WALRC) proposed that an appealfrom the Administrative Law Division of theLocal Court should only be available on a matterof law to the Administrative Division of theSupreme Court. A decision of the AdministrativeDivision would only be subject to appeal on amatter of law to the Full Court of the SupremeCourt.

Important Issue

• Should an appeal be available from anyadministrative appeals tribunal and ifso, should it be limited to a matter oflaw?

3.6 Review of the Administrative System

The Administrative Review Council (ARC) isestablished under the AAT Act (Cwlth). The ARCwas:

seen to be a key element in a scheme being proposed by theKerr Committee in that it would be charged with the task ofdetermining which decision should be reviewable by the[AAT]. (Pearce, 1989: 17)

The ARC identifies areas that could be the subjectof administrative appeals, undertakes research andprojects relating to administrative reform and actsas an adviser to departments and agencies.According to Pearce (1989), the only criticismsagainst the ARC are ‘on its low profile which hastended to make its presence less obvious thanwould be desirable’ (1989: 23).

To fulfil a similar role, the WALRC suggested areview council should be established to survey theprocess of public decision making. In Queensland,the Electoral and Administrative ReviewCommission (EARC) proposed that the rolecurrently performed by the ARC could becombined with that of an Administrative AppealsTribunal. This proposal has received strongcriticism, particularly by the QueenslandParliamentary Committee on Electoral andAdministrative Review (PCEAR) (1995) and theQueensland Ombudsman (1994).

Legislation provides for an estimated 360 appealsto be made to various appeal bodies in WesternAustralia. No systematic assessment of existing ornew legislation occurs to determine what decisionsshould be the subject of appeal. According to theEARC, if a major objective of externaladministrative appeal is to improve the quality ofadministrative decisions then:

it is suggested that the legislation establishing such a systemshould specify an additional general advisory role or duty,extending beyond the disposition of particular appeals, to thedetection of systemic problems in the process of decision-making in government agencies, and making suggestions forcorrective action. (EARC, 1991: 29)

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Important Issues

• What means should exist formonitoring, discussing and/or enforcingprocedural standards?

• What procedures should exist forrecommending administrative decisionswhich should be subject to review?

• Should an independent statutory bodyreview all powers to makeadministrative decisions andrecommend whether appeal rightsshould exist?

• Should this body be consulted prior tolegislation creating any new power tomake administrative decisions?

4. SUMMARY

Legislation providing an avenue to appeal againstadministrative decisions has been introduced inthe Commonwealth and in other states ofAustralia, as well as overseas. Most Australianstates, including Western Australia, which do nothave a systematic and coherent form ofadministrative appeals are considering proposalsfor the introduction of legislation to provide thatright. The WA Royal Commission was of the viewthat ‘accountability ... can require the provision ofthe opportunity to challenge official decisions’(1992, II: 3.1.11).

A comprehensive and coherent administrativeappeals system could improve the effectiveness,efficiency and accountability of government.Whilst an Administrative Appeals Tribunal maybe costly, the benefits of transparency andopenness, together with a higher standard ofgovernment administration could be achievedthrough such a system of administrative appeals.

REFERENCES

Administrative Review Council (ARC) (1995)‘Government Business Enterprises andCommonwealth Administrative Law’ Report No.38 Canberra

Administrative Review Council (ARC) (1994)Review of Commonwealth Merits ReviewTribunals Discussion Paper Canberra

Barker, Michael (1993) Administrative Law in theComing Decades: Meeting the Public Interest - ALesson from Western Australia Paper delivered tothe Annual Conference of the Australian Instituteof Administrative Law in April 1993 Canberra

Bayne, Peter (1989) ‘The Commonwealth Systemof Non-judicial Review’ Canberra Bulletin ofPublic Administration 58: 43-55

Bayne, Peter (1990) ‘Dispute About Tribunals’The Australian Law Journal 64: 493-497

Berinson, J. M. (1992) Media Statement by theHon. J. M. Berinson, MLC Thursday March 5

Commonwealth of Australia, AdministrativeReview Committee Report (1971) (Kerr Report)Canberra: AGPS

Commonwealth of Australia, Access to JusticeAdvisory Committee (Sackville CommitteeReport) (1994) Access to Justice: An Action PlanCanberra: AGPS

Commonwealth of Australia, Parliamentary JointSelect Committee on Tenure of Appointees toCommonwealth Tribunals (1989) Tenure ofAppointees to Commonwealth TribunalsCanberra: AGPS

Commonwealth of Australia, Committee onAdministrative Discretions (Bland Committee)(1973) Final Report of the Committee onAdministrative Discretions Canberra: AGPS

Curtis, Lindsay (1989) ‘Crossing the FrontierBetween Law and Administration’ CanberraBulletin of Public Administration 58: 55

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De Maria, William (1991) ‘The AdministrativeAppeals Tribunal: Legal Parasitism and the Deathof Mediation’ Queensland Law Society Journal21(2): 109-117

Dwyer, Joan (1991) ‘Overcoming theAdversarial Bias in Tribunal Procedures’ FederalLaw Review 20: 252-275

Gill, David (1989) ‘Formality and Informality inthe AAT’ Canberra Bulletin of PublicAdministration 58: 133-136

Hotop, S. D. (1985) Principles of AustralianAdministrative Law Sixth Edition Sydney: TheLaw Book Company Limited

Marquet, L. B. (1990) ‘The Separation of PowersDoctrine and the Constitution of WesternAustralia’ Western Australian Law Review 20:445- 452

Mathews, The Hon. Justice Jane (1994)Administrative Review: Where Do We Go FromHere? Paper delivered to the Australian Societyof Labor Lawyers Conference September 1994Fremantle

New Zealand, Legislation Advisory Committee(1988) Report on Administrative TribunalsWellington: Department of Justice

Nicholson, R. D. (1994) ‘Judicial andAdministrative Review in Western Australia:Blueprints for Development’ Western AustralianLaw Review 24: 151-171

O’Connor, The Hon. Justice Deirdre F. (1993)‘Effective Administrative Review: An Analysis ofTwo-Tier Review’ Australian Journal ofAdministrative Law 1: 4-12

Pearce, Dennis (1989) ‘The Fading of the VisionSplendid?’ Canberra Bulletin of PublicAdministration 58: 15-24

Queensland, Electoral and Administrative ReviewCommission (EARC) (1991) ‘Appeals FromAdministrative Decisions’ Issues Paper No. 14Brisbane

Queensland, Electoral and Administrative ReviewCommission (EARC) (1993) Report on Review ofAppeals From Administrative Decisions Brisbane

Queensland, Parliamentary Committee forElectoral and Administrative Review (PCEAR)(1995) Report on Review of Appeals FromAdministrative Decisions Brisbane

Queensland, Parliamentary Commissioner forAdministrative Investigations (QueenslandOmbudsman) (1994) Annual Report 1993-94Brisbane: Government Printer

United Kingdom, Committee on AdministrativeTribunals and Enquiries (Franks CommitteeReport) (1957) Report London: HMSO

Western Australia, Office of the Attorney General(1994) Tribunals Review Discussion Paper Perth


Western Australia, Legislative Assembly StandingCommittee on Government Agencies (SCGA)(1994) ‘State Agencies: their Nature andFunction’ Thirty-Sixth Report Perth

Western Australian Law Reform Commission(WALRC) (1982) ‘Report on Review ofAdministrative Decisions: Appeals’ Project No.26 Part I Perth

LEGISLATION

Administrative Procedure Act 1946 (USA)Administrative Decisions (Judicial Review) Act1977 (Cwlth)Administrative Appeals Tribunal Act 1975 (Cwlth)Administrative Appeals Tribunal Act 1984 (Vic.)Judicature Amendment Act 1968 (NZ)Tribunals and Inquiries Act 1958 (UK)

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CASES

Re Drake and Minister for Immigration andEthnic Affairs (No. 2) (1979) 2 ALD 634Public Service Board of New South Wales vOsmond (1986) 159 CLR 656

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Part II: PUBLIC SECTOR OFFICERS ONBOARDS AND COMMITTEES

1. INTRODUCTION

Specified Matter 8 requires the Commission onGovernment to inquire into and report on:

The appointment of officers employed in the public sector toBoards and Committees with particular reference toRecommendation 16 in Part II of the Report of the RoyalCommission.

In its report the Western Australian RoyalCommission into Commercial Activities ofGovernment and Other Matters (WA RoyalCommission) noted statutory authorities and State-owned companies played a major role in theevents into which it inquired. It concluded that itwas essential to set out the accountabilityobligations which must be exacted from suchbodies (1992: II 3.14).

Recommendation 16 in Part II of the WA RoyalCommission’s Report reads as follows:

(a) If a statutory authority or State-owned company is to begiven some level of independence of ministerialcontrol, that autonomy must be conferred openly andexplicitly by Parliament. It should not be left toinference.

(b) A public servant should not be appointed to the boardof a statutory authority or State-owned company whileretaining a position in the Public Service in adepartment within any portfolio of the ministerresponsible for that body. (1992 II 3.14.13)

The practice of public sector employees holdingmore than one office may not in itself beobjectionable. However, where the offices held areincompatible, questions of law regardingconflicting duties, public policy and proprietyarise.

Finn (1993) notes the existence of the commonlaw rule on incompatible offices, which has a longhistory. Mechem, as quoted by Finn, says the rulemeans ‘he who, while occupying one office,accepts another incompatible with the first, ipsofacto absolutely vacates the first office and histitle is thereby terminated without any other act or

proceeding’ (1993, 154). The rule is based ‘on theinconsistency of official roles – or on the conflictof duty and duty (1993, 154).’ Finn states that ‘thepublic policy which underlies the rule isstraightforward ... every public office in oursystem of government exists, in its own way, toserve the public interest’ and, quoting from Jonesv MacDonald (162 A.2d 817), concludes that ‘[i]ftwo offices are held and “the duties of office clashin their demands with the result that the incumbentmust choose between them, the public interest isviolated.’’’ (1993: 153-154)

Before proceeding further, it is necessary toclarify how the terms ‘officer employed’, ‘publicsector’ and ‘Boards and Committees’ are to beinterpreted in this paper.

‘Officer employed’ can be interpreted narrowly toinclude only those who exercise official powers.The Commission on Government interprets theterm widely to include all employees in the publicsector.

Public sector can also be interpreted narrowly asdefined in the Public Sector Management Act1994 (PSM Act). However, for Specified Matter 8we have chosen to interpret the term widely toinclude:

(i) the Governor and Executive Council;

(ii) the Parliament and all its Committees, bothStanding and Select;

(iii) the Cabinet;

(iv) public sector bodies as defined in the PSMAct;

(v) ministers and their immediate offices;

(vi) departments, government trading enterprisesand agencies responsible to ministers;

(vii) boards of statutory authorities and quasi-autonomous non-government organisationsreceiving money from the ConsolidatedFund;

(viii) government appointed committees;

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(ix) statutory officials responsible to Parliament,such as the Auditor General, theParliamentary Commissioner forAdministrative Investigations (StateOmbudsman) and the Commissioner forPublic Sector Standards;

(x) local government bodies;

(xi) the Police Service; and

(xii) governing boards of universities appointedby Government.

Whilst Specified Matter 8 could be interpreted toinclude the appointment of officers employed inthe public sector to private sector boards andcommittees, we have decided to limit the scope ofour enquiries to the appointment of public sectoremployees to Western Australian GovernmentBoards and Committees (WA Boards andCommittees). Further, we propose to limit ourenquiries to those WA Boards and Committeeswhich:

• are established by statute or subordinatelegislation;

• have their expenses met in whole or in partfrom the Consolidated Fund or borrow fundsagainst the credit of the State;

• have members appointed following Cabinetapproval;

• are appointed by or report to ministers;

• have members from outside the WesternAustralian public sector;

• have members who receive remuneration fortheir work as members; or

• exercise powers on behalf of the WesternAustralian Government.

Accordingly, we do not propose to inquire intointernal departmental committees or workinggroups unless they fall into one of the categoriesmentioned above.


In Western Australia, the Office of StateAdministration in the Ministry of the Premier andCabinet maintains a Register of WesternAustralian Boards and Committees for whichappointments must be approved by Cabinet.Consideration of such appointments represents asignificant portion of Cabinet business. In January1996, there were 750 WA Boards and Committeeslisted on the Register. Of these, at least 117 arerequired by statute to have members who arepublic sector employees and over 70 of them musthave public sector employees as chairpersons.

The powers and responsibilities of WA Boardsand Committees are diverse and include bodies asdifferent in purpose as the BeekeepersConsultative Committee, the Library Board ofWestern Australia and Hospital Boards.

In Western Australia there is a strong push forgreater devolution of management responsibilityand authority, but there are also calls for increasedaccountability and strong central controls. ThePublic Sector Management Act 1994accommodates greater devolution of managementby replacing central control of employment in thepublic service under a single employer with asystem of agency-based employment for all butthe most senior appointments. The PSM Act alsopreserves central control by requiring agencymanagers to administer their organisations inaccordance with general principles in the Act andpublic sector standards developed by theCommissioner for Public Sector Standards.

Public sector reform in Western Australia isresulting in greater commercialisation,corporatisation, contracting out and privatisation(COG, Discussion Paper No. 10). As governmentagencies adopt structures more similar to those inthe private sector, more potential for theappointment of public sector employees to WABoards and Committees can be envisaged. SomeWA Boards and Committees are established tooperate, and to be seen to operate with a degree ofindependence. When public sector employees areappointed to such boards and committees, there ispotential for them, either directly or more subtly,

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to put loyalty to their home agencies ahead ofloyalty to the board or committee. In an extremecase, the responsible minister might direct adepartmental head or other employee to pursue aparticular outcome as a board or committeemember. In so doing, a minister might put thepublic sector employee’s duties as an employee inconflict with the employee’s duties as a committeeor board member, particularly if the board orcommittee is a corporation.

In 1991-92 a working party was convened by thethen Western Australian Minister forMicroeconomic Reform to makerecommendations to the Government on anappropriate Code of Conduct and on liabilities fordirectors of Government enterprises. The resultwas a document entitled Accountability andResponsibility - A Policy Discussion Paper OnPersonal Liabilities And A Code of Conduct forDirectors of Government Enterprises which waspublished in August 1992 (WA Govt, 1992). Theworking party called for the enactment of omnibuslegislation to incorporate a Director’s Charter and,in addition, that a code of ethics be developed forgovernment trading enterprises. The workingparty’s recommendations have not beenimplemented.


3.1 Conflict of Duty and MinisterialDirection

As mentioned in the introduction, the WA RoyalCommission was particularly concerned by theappointment of public servants to boards ofstatutory authorities and State-owned companiesfalling within the portfolio responsibility of theminister in whose department the public servant isan employee. Finn has identified circumstanceswhich could give rise to incompatibility asincluding:

(a) where the board provides advice to the Minister and theduty of the public servant in his or her departmentalposition is to furnish advice to the Minister on thatrendered by the board; and

(b) where the public servant acting as such has dutiesinvolving the supervision, making of recommendations,

providing ministerial advice, etc. in relation to theboard, corporation, etc. and its affairs.

Beyond these two types of case are those which, whilethey may not necessarily infringe the letter of the rule[of incompatible offices], nonetheless offend against itsspirit. These are cases where, despite a board’s beinggiven some autonomy from ministerial control, thepublic servant board member –

(a) is expected within his or her Department to act as aconduit to the Minister concerning the board and itsaffairs - an activity which could put the official inbreach of his or her duty of secrecy to the board; or

(b) is intended or else assumes to act so as to ensure thatthe board acts in a way which is consonant with theMinister’s wishes-i.e. a situation of indirect or covertinfluence which undermines the formal independenceof the board. (1993: 156-157)

In his analysis, Finn lists reasons commonlyadvanced in support of appointment of publicofficials to boards as:

... experience in the formulation and implementation ofgovernment policy, understanding the ways of publicadministration, familiarity with the area of endeavour of theboard but from a perspective different from other members,etc. (1993: 157)

Finn notes there is legislation providing for publicsector officials to be members of boards but says:

... [w]hat, however, needs to be guarded against ... is that anofficial so appointed is not thereby put in a position whichcompromises either the official or the board itself.(1993: 157)

Commonwealth Government appointments (iethose made by the Governor-General in Council orby Ministers), are submitted for approval toCabinet. The particular procedures to be followedin each case are set out in the Cabinet Handbook.The appointment action is initiated by the Ministerconcerned. Paragraph 7.12 of the proceduresrequires nominating Ministers to ‘ ... consultrelevant ministerial colleagues, particularly whenproposing to appoint officers employed in anotherportfolio to an advisory committee in their ownportfolio’.

Advice concerning departmental members ofgoverning boards was included in guidelines

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issued by the Commonwealth Finance Minister inOctober 1987. The Guidelines note that:

[s]pecial care should be exercised to guard against conflictsof responsibility and loyalty between the officer’s position inthe department and his/her position as a member of theauthority; such a circumstance might arise, for example,when a board chooses not to inform the Minister of a matterthe departmental member believes should be drawn to notice.In these circumstances, authorities should recognise that it isopen for the departmental member to do so, as any othermember can do. It is, however, unlikely that any legislativeprovision could be of service in resolving problems of thisorder; reliance will need to be placed upon the good sense ofthe individuals concerned. (Cwlth Minister for Finance,1987: 12)

The Commonwealth has also issued accountabilityand ministerial oversight arrangements forgovernment business enterprises (GBEs). Thesearrangements state that:

[t]he appointment of departmental officers to GBE Boardswill be a matter for consideration on a case-by-case basis,having regard to their ability to represent the interests of theGovernment, their possession of the [relevant] business skills... and any potential conflicts of interest that might arise.(Cwlth Govt, 1995: 3)

In its Thirty-Sixth Report, the Legislative CouncilStanding Committee on Government Agencies(SCGA) proposed a State Agencies Act. Part 6 ofthe Committee’s draft Bill included provisionsrelated to Ministerial direction including thatdirections be in writing. (SCGA: 1994).

The Statutory Corporations (Director’s Duties)Bill 1991 contained similar Ministerial directionprovisions to those in the proposed State AgenciesAct, with a requirement in s.5(1)(a) that directionby a Minister be lawful and where provided for bywritten law, that the ‘direction be in writing andfor the relevant Minister to be required to cause acopy of it to be laid before each house ofParliament within 14 days (or such lesser timeprovided in the written law)’. Neither the proposedAct nor the 1991 Bill were enacted. Theseproposed legislative requirements were to apply toMinisterial direction of boards or committees andnot to specific directions or attempts to influencepublic sector officers to act contrary to theirresponsibility as a board member.

In 1994, the Victorian Government issuedguidelines for the appointment and remunerationof part-time non-executive members of stategovernment boards, statutory bodies and advisorycommittees. For state-owned companies (SOCs),and state business corporations (SBCs) theguidelines include the following advice:

a Minister should avoid placing public servants from his orher department on the board of a SOC or SBC so as to avoidthe potential for a conflict of interest. If the minister wishesto have a public servant appointed it should be from aDepartment which has no direct involvement with the area ofoperation of the SOC or SBC. In the case of bodies otherthan SOCs or SBCs the conflict of interest question does notarise because Ministers have the power to give directions.(Victorian Public Service, 1994: 11)

Important Issues

• Should public sector employees serveon Western Australian Boards andCommittees?

• When a Western Australian Board orCommittee or one of its members hasreceived a Ministerial direction, shouldthe Board or Committee publish thedirection how and when it deems fit?Should the Board or Committee becompelled to publish it?

• Should all Ministerial directions toWestern Australian Boards andCommittees or individual members bepublished in the Government Gazette?

3.2 Codes of Conduct - Duties and Liabilities

In July 1995 the United Kingdom SelectCommittee on Standards in Public Life (NolanCommittee) published its first report. TheCommittee’s conclusions with respect to executiveNon-Departmental Public Bodies (NDPBs) andNational Health Service (NHS) bodies includedthe following:

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Propriety

It should be mandatory for each executive NDPB and NHSbody to have a code of conduct for board members, and asimilar code for staff.

A review should be undertaken by the Government with aview to producing a more consistent legal frameworkgoverning propriety and accountability in public bodiesincluding executive NDPBs, NHS bodies and localauthorities.

Openness and independent monitoring are importantsafeguards of propriety, and should be extended. Inparticular staff should have a confidential avenue to raise anyconcerns about issues of propriety.

The responsibilities of accounting offices for propriety aswell as financial matters need to be emphasised. Auditarrangements should be reviewed to ensure that best practiceapplies to all public bodies. (Nolan Committee, 1995: 65)

A director’s responsibility to a private or publiccompany is a special one known as a fiduciaryduty. As a result, the law imposes on directors ahigh standard of loyalty. That standard is reflectedin the imposition on directors of companies, bothat common law and pursuant to the CorporationsLaw, a number of obligations including duties to:

• act honestly;

• act in good faith for the benefit of thecompany as a whole;

• give adequate consideration to matters fordecision, and to keep discretions unfettered;

• exercise powers only for proper corporatepurposes;

• exercise a certain degree of care anddiligence; and

• avoid conflicts of interest (Ford and Austin,1995: 254).

In Western Australia, agency specific legislationhas been enacted to cover AlintaGas, WesternPower and the Water Corporation which havebeen corporatised. The duties imposed on boardmembers of these organisations are similar tothose required of directors under the CorporationsLaw.

Some Australian States have general legislationrelating to State-owned enterprises. These are the:

• State Owned Corporations Act 1989 (NewSouth Wales).

• State Owned Enterprises Act 1992 (Victoria).

• Government Owned Corporations Act 1993(Queensland).

• Public Corporations Act 1993 (SouthAustralia).

• Government Business Enterprises Act 1995(Tasmania).

To varying degrees, these Acts set out the role,duties and liabilities of directors of State-ownedenterprises. The duties imposed on the members ofthe relevant boards of management by these Actsare analogous to the obligations of directors ofprivate sector companies. For example, s.39 of theState Owned Enterprises Act 1992 (Vic.) providesthat a director of a State business corporationmust:

• act honestly;

• at all times exercise a reasonable degree ofcare and diligence;

• not make improper use of information; and

• not make improper use of their position asdirector.

In September 1995, the South Australian CabinetOffice issued detailed guidelines for agencies andboard directors concerning government boards andcommittees. The guidelines included a code ofconduct for directors of boards. The SouthAustralian guidelines also set out the duties andliabilities of members of government boards andcommittees and incorporate the requirements ofthe Public Corporations Act 1993 (SA).

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Important Issues

• Should there be a code of conduct forpublic sector members of WesternAustralian Boards and Committees?

• Should all members of WesternAustralian Boards and Committees berequired to undertake some form oftraining?

• Should guidelines be produced formembers of Western Australian Boardsand Committees setting out themembers’ duties and liabilities?

• What protection from liability, if any,should be afforded to members ofWestern Australian Boards andCommittees?

3.3 Selection and Appointment

The Nolan Committee concluded:

Appointments

Appointments to the boards of executive NDPBs [Non-Departmental Public Bodies] and NHS [National HealthService] bodies should be made on the basis of merit, to formboards with a balance of relevant skills and backgrounds.

Responsibility for appointments should remain withMinisters, advised by committees which include independentmembers.

A Public Appointments Commissioner should be appointed,to regulate, monitor, and report on the public appointmentsprocess.

The process should be open and departments should have tojustify any departures from best practice. Job specificationsshould be published, and a wide range of candidates shouldbe sought. The suitability of each candidate should beassessed by an advisory committee. (Nolan Committee,1995: 65)

A Public Appointments Commissioner for theUnited Kingdom was recently appointed.

Other than statutory requirements applying inparticular cases, Western Australia has no formal

procedures setting out how nominees formembership of WA Boards and Committeesshould be selected for consideration by Cabinet.The Office of State Administration maintains anInterested Persons Register which contains detailsof people who have expressed interest in beingappointed to WA Boards and Committees. Fromtime to time advertisements are placed innewspapers advising of the Register and invitingthe public to put their names forward for inclusionon it. Very often the names of possible appointeesare suggested to the Minister by his departmentcomprising public servants.

Some other States have developed formalprocedures for all appointments to governmentboards and committees. South Australia andVictoria have developed comprehensiveguidelines for appointments to government Boardsand Committees. The Victorian guidelines havealready been mentioned in Section 3.1 above andthe South Australian guidelines in Section 3.2.

In May 1995 the Premier of New South Wales(NSW) issued a memorandum to all Ministerssetting out the procedures to be followed whenmaking appointments to boards and committees inthat State. The procedures in NSW requireproposed appointments to be cleared by the PublicEmployment Office before formal documentationis prepared and submitted to the CabinetSecretariat. (NSW Premier, 1995)

Important Issues

• How should vacancies on WesternAustralian Boards and Committees befilled?

• Should all vacancies on WesternAustralian Boards and Committees beadvertised?

• Should all appointments to WesternAustralian Boards and Committees beannounced?

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• Should there be minimum selectioncriteria for membership of WesternAustralian Boards and Committees?

• Should selection criteria be published?

• Should there be a public appointmentscommissioner for Western Australia?

• To what extent should personnelselection panels be used to selectnominees for Western AustralianBoards and Committees?

3.4 Remuneration

WA and Commonwealth Public Sector employees,including academics, serving on WA Boards andCommittees do not normally receive additionalremuneration. In its report of 1992, the workingparty established by the then Western AustralianMinister for Microeconomic Reform (Section 3.2above) recommended:

[t]hat Public Servants who serve on boards as non-executivedirectors be remunerated in line with the additional dutiesand liabilities to which he/she is exposed by virtue of his/heragreement to act as a director. Such allowances to bedetermined by the Salaries and Allowances Tribunal. (WAGovt, 1992: 12)

Important Issue

• Should public sector employeesincluding academics receive extraremuneration for serving as members ofWestern Australian Boards andCommittees?

3.5 Accountability

Existing accountability agencies can and doscrutinise the operations of many WA Boards andCommittees. However, there is no uniformapproach and some WA Boards and Committees

may not be subject to a level of scrutinycommensurate with their powers, responsibilitiesand resources deployed.

Important Issue

• What measures would ensure thatWestern Australian Boards andCommittees act responsibly and in thepublic interest?

4. SUMMARY

Members of WA Boards and Committees performan important role in the government of this State.They perform a variety of tasks and in some casesdirect State-owned enterprises or dischargeimportant responsibilities. Members of WABoards and Committees should be of the highestcalibre and able to perform their duties withintegrity. To this end the Commission onGovernment welcomes submissions on theImportant Issues raised in this discussion paper.

REFERENCES

Commonwealth of Australia, Department of thePrime Minister and Cabinet (1994) CabinetHandbook Canberra: Australian GovernmentPublishing Service

Commonwealth of Australia, Minister for Finance(Cwlth Minister for Finance) (1987) PolicyGuidelines for Commonwealth StatutoryAuthorities and Government Business EnterprisesCanberra: Australian Government PublishingService

Commonwealth Government (Cwlth Govt) (1995)Accountability and Ministerial OversightArrangements for Government BusinessEnterprises Australia

Finn, Paul D. (1993) ‘Abuse of Official Trust :Conflict of Interest and Related Matters’ Integrityin Government Project: Second Report TheAustralian National University

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Ford, H.A.J. and R.P. Austin (1995) Principles ofCorporations Law Sydney: Butterworths

New South Wales, Premier (NSW Premier) (1995)Memorandum No. 95-18 Appointments ToGovernment Boards and CommitteesMemorandum to all Ministers Sydney

South Australia, Department of the Premier andCabinet - Cabinet Office (SA Cabinet Office)(1995) Government Boards and Committees:Guidelines for Agencies and Board DirectorsGuidelines Adelaide

United Kingdom, Select Committee on Standardsin Public Life (Nolan Committee) (1995) FirstReport: Volume 1 London: HMSO

Victoria, Public Service (Victorian Public Service)(1994) Guidelines for the Appointment andRemuneration of Part-time Non-executiveDirectors of State Government Boards andMembers of Statutory Bodies and AdvisoryCommittees Guidelines Melbourne

Western Australia, Legislative Council StandingCommittee on Government Agencies(SCGA) (1994) ‘State Agencies - Their Natureand Functions’ Thirty-Sixth Report Perth

Western Australia, Government (WA Govt)(1992) Accountability and Responsibility - APolicy Discussion Paper On Personal LiabilitiesAnd A Code of Conduct for Directors ofGovernment Enterprises Discussion Paper Perth

Western Australia, Royal Commission intoCommercial Activities of Government and OtherMatters (WA Royal Commission) (1992) ReportParts I and II Perth

LEGISLATION

Corporations LawGovernment Business Enterprises Act 1995 (Tas.)Government Owned Corporations Act 1993 (Qld)Public Corporations Act 1993 (SA)Public Sector Management Act 1994State Owned Enterprises Act 1992 (Vic.)State Owned Corporations Act 1989 (NSW)Statutory Corporations (Director’s Duties) Bill1991

Page 1



GO V E R N M E N T

WESTERN AUSTRALIA

COGD

ISC

US

SIO

NP

AP

ER

No

. 15







March 1996

Specified Matter: 24

StateConstitution

Page 2


SUBMISSIONS







PREFACE


The Specified Matters, which are set out in theFirst Schedule of the Commission on GovernmentAct 1994, provide the initial focus of theCommission’s inquiries. The relevant issues,however, cannot be addressed in a vacuum. TheCommission wishes to encourage a properunderstanding of the issues and of the competingarguments for and against change. This appliesalso to any matters which may become part of theCommission’s inquiries. We have concluded thatit is necessary to address the context in which theSpecified Matters have arisen the historical,contemporary and topical circumstances andevents which surround them and their relevancefor the future.



This paper deals with Specified Matter 24.

The task of the Commission is to inquire into theadequacy of the processes by which theconstitutional laws of the State may be changed.Constitutional issues directly affect or touch on allof the other 23 specified matters of theCommission’s inquiries.

Page 3

CONTENTS

SPECIFIED MATTTER 24STATE CONSTITUTION

1. INTRODUCTION

1.1 The Nature of a Constitution1.1.1 A Constitution as a Higher Law1.1.2 Amending a Constitution1.1.3 The Use of the Term

‘Constitution’1.2 The Australian Constitutional

Tradition1.2.1 Sources of Australian

Constitutionalism1.2.2 Judicial Review to Enforce

Constitutional Law1.3 Australian Comparisons1.4 International Comparisons1.5 Constitutional Review in Other States


2.1 Constitutional Legitimacy2.2 The Process of Constitutional

Change — Entrenchment andEvolution

2.3 Is There a Western AustralianConstitution?2.3.1 Sources of Constitutional Laws2.3.2 Related Western Australian

Legislation2.3.3 Conventions2.3.4 The Commonwealth

Constitution and the AustraliaActs

2.3.5 Accessibility of ConstitutionalLaws

2.4 Changing the Constitution —Amendment Procedures2.4.1 Entrenchment2.4.2 Existing Entrenchment

Provisions2.5 Reviewing the Constitutional Laws of

the State2.5.1 Constitutional Change2.5.2 The Kobelke Report

2.5.3 The McCusker Report


3.1 What Should Be Included in aConstitution?3.1.1 The Role of the Governor and

the Executive Council3.1.2 The Role of the Premier3.1.3 The Role and Responsibility of

Ministers3.1.4 The Size of the Ministry in

Relationship to the Size ofParliament

3.1.5 The Role and Responsibilitiesof Members of Parliament

3.1.6 Parliament3.1.7 The Relationship of the

Government and Parliament3.1.8 Independent Accountability

Officials3.1.9 The Judiciary3.1.10 Local Government3.1.11 A Bill of Rights3.1.12 A Preamble

3.2 Particular Issues3.2.1 Resolution of Deadlocks3.2.2 Removal From Office

3.3 Status of a Constitution?3.3.1 Constitutional Change and

Entrenchment3.4 Amending Procedures

3.4.1 Special ParliamentaryMajorities

3.4.2 Referendum3.4.3 Citizen Initiated Referendum

(CIR)3.4.4 People’s Convention

3.5 A New Constitution

REFERENCES

APPENDIX 1

Page 4

1. INTRODUCTION

In the course of its inquiries into the prevention ofcorrupt, illegal and improper conduct in the publicsector, the Commission has been made aware ofserious shortcomings in the way in whichgovernments can be held accountable to thepublic. Some of these deficiencies spring fromambiguities in the State’s constitutional structure.It is difficult, for example, to know if a premier isdischarging the functions of office properly if theresponsibilities of the office are not defined in theconstitutional laws of the State.

For this reason, the Commission is invitingdiscussion on ways in which the constitutionallaws of the State can be made more effective inpreventing corrupt, illegal and improper conductin the public sector.

Specified Matter 24 requires the Commission toinquire into:

The adequacy of the processes by which the constitutionallaws of the State may be changed.

Constitutional issues directly affect or touch on allof the other 23 specified matters of theCommission’s inquiries. Those constitutionalissues and the wider issues of principle associatedwith a Western Australian Constitution arethemselves relevant to the prevention of corrupt,illegal and improper conduct in the public sector.Therefore, the Commission considers that it isappropriate and desirable to examine these issuesin conjunction with Specified Matter 24, seekpublic submissions about all related aspects of thequestion and conduct public hearings which willencompass the full breadth of issues surroundingthe State’s constitutional laws. This discussionpaper has been prepared accordingly.

Some of the key terms used in this DiscussionPaper have been defined in Appendix 1.

1.1 The Nature of a Constitution

1.1.1 A Constitution as a Higher Law

In a community that values individual freedomand the rule of law, a constitution is a set of basic

rules to ensure that the government acts in theinterest of citizens. It sets out the procedures thatthe government and its agencies must follow iftheir actions are to be lawful. But a constitution ismore than a description of the structure ofgovernment. The government holds power only ontrust for the community and must always beaccountable to the community. A constitution is ahigher law in that it grants power to thegovernment to carry out the collective wishes ofthe community. At the same time, it defines thepower of government by specifying the proceduresthat the government must follow if its legislativeenactments are to be valid. A constitution reflectsa belief in the importance of setting limits on thepower of government and ensuring it is responsiveand accountable to the public.

Some constitutions go further and set out thebroad goals of the political community in anopening statement or preamble. Others go furtherstill, and list some principles that are so importantin preserving individual freedom that they arebeyond the power of governments to change. Sucha list is usually called a Bill or charter of rights.

1.1.2 Amending a Constitution

Because of their importance, constitutional lawshave a special status. This is often reflected in thespecial procedures that are required for amendinga constitution. The constitutional requirement forspecial procedures is usually called entrenchmentand can be justified on two grounds. Firstly, if theconstitution is a higher law, it needs a differentprocedure for its amendment from that of ordinarylegislation. Secondly, if the constitution is to be aneffective check on the government, it must bebeyond the ability of the government of the day tochange the constitution without reference to abroader political constituency than the partisansupporters of the government.

1.1.3 The Use of the Term ‘Constitution’

The term constitution can refer to a number ofthings: a particular document called ‘TheConstitution’; a collection of documents that setout the key elements of government; or thecombination of constitutional laws and practices

Page 5

that describe how the governmental systemactually works. In Australia there is the addedcomplication that to talk of ‘the constitution’implies a reference to the CommonwealthConstitution.

This paper is concerned with the constitutionallaws of Western Australia and the term‘Constitution’ will refer to the two documents thatset out much of the governmental machinery ofthe State – the Constitution Act 1889 (theConstitution Act) and the Constitution ActsAmendment Act 1899 (the Amendment Act).

1.2 The Australian Constitutional Tradition

1.2.1 Sources of Australian Constitutionalism

The system of government at both federal andstate levels is based primarily on the Britishparliamentary model which is reflected in theCommonwealth and state constitutions. Theconstitutions themselves, however, particularly theCommonwealth Constitution, are uniquelyAustralian, although the CommonwealthConstitution was influenced by concepts of bothAmerican and British constitutional law.

The Australian constitutional tradition has beenstrongly shaped by the experience of self-government in Australia since 1860. The principalelements which have established Australianconstitutionalism as distinct from the Britishparliamentary model are:

• the adoption of constitutional laws as a higherlaw;

• the role of judicial review to enforceconstitutional law;

• the limitations imposed by a federal system;and

• the role of powerful upper houses in theCommonwealth and most states.

1.2.2 Judicial Review to EnforceConstitutional Law

Neither the State Constitution nor theCommonwealth Constitution specifically bestowjurisdiction on the judiciary to review the validityof constitutional legislation. However, the HighCourt is invested with original jurisdiction inmatters ‘arising under the CommonwealthConstitution or involving its interpretation’ byvirtue of s.76 of the Commonwealth Constitutionand s.30 of the Judiciary Act 1903 (Cwlth). TheSupreme Court has inherent jurisdiction todetermine issues arising from the StateConstitution. The High Court of Australia not onlydecides disputes about the meaning of theCommonwealth Constitution but may also decidestate constitutional disputes as it is the final courtof appeal in Australia.

The extent to which courts can act as finalconstitutional umpires will depend on the bindingnature of a constitution. Most provisions of stateconstitutions can be amended by state parliamentsby ordinary legislation. This means that the effectof judicial decisions on most state constitutionalissues can be overturned by subsequentlegislation.

1.3 Australian Comparisons

The constitutional amendment procedures foundin the various Australian constitutions, range fromthose that are difficult for the government toamend (for example the referendum requirementwhich applies to the whole of the CommonwealthConstitution) to those that are easier to amend(absolute or two-thirds majority requirements forcertain parts of state constitutions) to those thathave no special procedures for their amendment(Table 1).

1.4 International Comparisons

Constitutional amendment procedures have beenclassified (Lijphart, 1984) into three basic types,according to whether approval is required:

• by special majorities (eg the United States andSwitzerland);

Page 6

Tab

le 1

Inte

rsta

te a

nd C

omm

onw

ealth

Com

paris

on o

f Prin

cipa

l Con

stitu

tion

Act

s

WE

ST

ER

NA

US

TR

ALI

AS

OU

TH

AU

ST

RA

LIA

VIC

TO

RIA

TA

SM

AN

IAQ

UE

EN

SLA

ND

NE

WS

OU

TH

WA

L

PR

INC

IPA

LC

ON

ST

ITU

TIO

NA

CT

S

Co

nst

itutio

n A

ct 1

88

9(W

A);

Con

stitu

tion

Act

s A

men

dmen

t Act

18

99

(W

A)

Co

nst

itutio

n A

ct 1

93

4(S

A)

Co

nst

itutio

n A

ct 1

97

5(V

ic.)

Co

nst

itutio

n A

ct 1

93

4(T

as.)

Co

nst

itutio

n A

ct 1

86

7(Q

ld);

Con

stitu

tion

Act

Am

endm

ent A

ct 1

934

(Qld

)

Co

nst

itutio

n A

ct (N

SW

)

EN

TR

EN

CH

ME

NT

PR

OV

ISIO

NS

Co

nst

itutio

n A

ct 1

88

9(W

A),

s.7

3(1

) &

(2

);E

lect

ora

l Dis

trib

utio

nA

ct 1

94

7,

s.1

3

Co

nst

itutio

n A

ct 1

93

4(S

A),

ss.

8, 1

0a,

64

(a)(

iii)

an

d 8

8

Co

nst

itutio

n A

ct 1

97

5(V

ic.)

s.1

8C

on

stitu

tion

Act

19

34

(Tas

.), s

.41(

A)

(en

tre

nch

ed

s.2

3)

Co

nst

itutio

n A

ct 1

86

7(Q

ld),

ss.

53 a

nd 5

6;C

onst

itutio

n A

ctA

men

dmen

t Act

193

4(Q

ld),

ss.

3,

4

Co

nst

itutio

n A

ct (N

SW

), s

s.7A

, 7B

Abs

olut

e M

ajor

ityY

esY

esY

esN

oN

oN

o

Tw

o-T

hird

Maj

ority

No

No

No

Yes

(A

ssem

bly)

No

No

App

rova

l at a

Pop

ular

Ref

eren

dum

Yes

Yes

No

No

Yes

Yes

Spe

cial

Pro

visi

ons

whi

ch S

ecur

e th

eA

men

dmen

t (D

oubl

eE

ntre

nchm

ent)

Yes

Yes

Yes

No

Yes

Yes

MA

TT

ER

SW

HIC

H A

RE

EN

TR

EN

CH

ED

Off

ice

of

Go

vern

or;

the

bica

mer

al n

atur

e of

Par

liam

ent;

mem

bers

chos

en d

irect

ly b

y th

ep

eo

ple

; sy

ste

m f

or

red

istr

ibu

ting

ele

cto

rate

s; n

um

be

rs o

fth

e M

em

be

rs o

f th

eLe

gisl

ativ

e C

ounc

ilan

d th

e Le

gisl

ativ

eA

ssem

bly;

pa

rlia

me

nta

ry s

ess

ion

san

d sp

ecia

l am

endm

ent

prov

isio

ns.

The

bic

amer

al n

atur

eof

Par

liam

ent;

the

po

we

rs o

f th

eLe

gisl

ativ

e C

ounc

il;th

e A

sse

mb

ly D

istr

icts

of

the

Sta

te;

loca

lgo

vern

men

t and

the

dis

solu

tion

of

bo

thH

ou

ses

wh

ere

th

ere

isa

dead

lock

.

The

Cro

wn;

Loc

alG

over

nmen

t; th

eS

upre

me

Cou

rt;

expe

nses

of E

xecu

tive

Cou

ncil;

Leg

isla

tive

Cou

ncil

and

Legi

slat

ive

Ass

embl

y;th

e po

wer

s an

dju

risd

ictio

n o

f th

eco

urt

.

Fo

ur-

yea

r te

rms

of

the

Legi

slat

ive

Ass

embl

y.S

truc

ture

and

num

bers

in th

e Le

gisl

ativ

eA

ssem

bly

and

the

Pa

rlia

me

nt;

off

ice

of

the

Gov

erno

r an

d th

epo

wer

s an

d du

ties

whi

ch a

rise

from

this

off

ice

; m

inis

teri

al

off

ice

s; lo

cal

gove

rnm

ent a

nd th

eLe

gisl

ativ

e C

ounc

il is

no

t to

be

re

-est

ab

lish

ed

exce

pt th

roug

hap

prov

al a

tre

fere

nd

um

.

The

bic

amer

al na

of th

e P

arlia

ment

com

puls

ory

votin

sin

gle

me

mb

er

ele

cto

rate

s; e

lec t

dis

tric

ts;

nu

mb

er

vote

rs in

ele

cto

rad

istr

icts

; co

nd

uct

Legi

slat

ive

Ass

eme

lect

ion

s a

nd

th

eJu

dici

ary.

Page 7

• by referendum (eg Denmark and Ireland); or

• by an ordinary parliamentary majority (egUnited Kingdom, New Zealand and Sweden).

Under the first of these, amendments toconstitutions are subject to minority veto. Thesimplest mechanism embodying a minority veto isa special parliamentary majority, usually two-thirds, where one more than a one-third minoritycan veto the amendment. Alternatively, or inaddition to this, approval may be required bymajority support in a majority of subnationalbodies such as states or cantons. In the case of theUnited States, three-fourths of the states arerequired to amend the Constitution which givesone more than one-fourth of the states a minorityveto. This three-fourths requirement can alsoinvolve a minority veto depending on thepopulation size of the refusing states.

The third category is considered the most easilycontrolled by the government of the day as nospecial procedures are required to approve change.Sweden has a variation on this by requiringapproval by two successive parliaments, with anelection held in between.

The terms majority rule and minority veto areuseful to describe two different democraticsystems. The first involves rule by a majoritywhich is characteristic of more homogeneoussocieties. Minority veto, on the other hand, tendsto characterise less homogeneous societies, whereconsensus is important in avoiding the disaffectionof ethnic, linguistic, religious or geographicalminorities (Lijphart, 1984).

1.5 Constitutional Review in Other States

Victoria is one of the few states to haveundertaken a substantial consolidation of itsConstitution. The Constitution Act 1975 (Vic.)consolidated all the previous constitutional actsdating back to 1855 and gave the new legislationthe form of a Victorian Act of Parliament afteroriginally being introduced as part of Britishlegislation. The Queensland Parliament hasestablished a Committee to consider the need toreview its State constitution (Queensland, Legal

Constitutional and Administrative ReviewCommittee). The Queensland Electoral andAdministrative Review Commission in its 1992Report on Consolidation and Review of theQueensland Constitution drafted a proposedConstitution for Queensland. Most Australianjurisdictions have also set up committees toconsider the constitutional implications of apossible move to a republic at the national level.


2.1 Constitutional Legitimacy

Western Australia gained self-government in 1890when the United Kingdom Parliament passed anAct allowing for Western Australia to establish abicameral legislature with power to make laws forthe ‘peace, order, and good Government of thecolony’. This position was achieved after aprocess of evolution rather than revolution and therelevant legislation, the Constitution Act 1889, didlittle more than set out the basic machinery ofrepresentative government.

While this was appropriate at the time, it has leftWestern Australia without a constitutionaldocument that sets out all the importantinstitutions of government in the State and the wayin which they are to operate. There is also limitedopportunity for popular involvement in theamendment of the State’s constitutional laws.Much of the constitutional structure of the State(apart from those matters covered by s.73 of theConstitution Act 1889) can be changed by thegovernment of the day with little regard for thepreferences of citizens.

2.2 The Process of Constitutional Change —Entrenchment and Evolution

One feature of the State’s legislative history issaid to be the ‘ ... way in which the seamlessgarment of the original and single ConstitutionAct has been rent and further divided with thepassage of time’ (Johnston and Hotop, 1990: 436).

One of the most significant alterations to theConstitution Act 1889 was the enactment of the

Page 8

Constitution Acts Amendment Act 1899. ThisAmendment Act was itself amended resulting inthe removal of electoral matters into separateelectoral legislation.

The Aborigines Act 1905 repealed s.70 of theConstitution Act 1889. This section provided that£5,000 or, if greater, one per cent of the colony’srevenue, was to be set aside annually for thebenefit of the Aboriginal people of the colony.There has been some controversy over thelegislative attempts to repeal this section(Johnston, 1989).

In 1978 s.73 of the Constitution Act 1889 (theamendment provision) was amended. The effect ofthis was to add matters to the list of thoserequiring a majority of the full membership ofboth Houses of Parliament (an absolute majority),rather than ordinary majorities for approval. It alsointroduced an additional referendum requirementto amend some constitutional matters.

All of these amendments to the Constitution havebeen brought about by way of legislation and noreferendum has been held to amend any of thematters listed in s.73. Although there have beenmany changes to the constitutional laws of theState, few have been fundamental (Johnston,1991).

2.3 Is There a Western AustralianConstitution?

2.3.1 Sources of Constitutional Laws

There is no single document which contains all theconstitutional laws of the State. Apart from theConstitution Act and the Amendment Act thereare a number of other possible sources of Stateconstitutional law. These include:

• other Western Australian legislation (egElectoral Act 1907, Supreme Court Act 1935);

• Commonwealth Constitution;

• Australia Act 1986 (UK), Australia Act 1986(Cwlth), Australia Act (Request) Act 1985,(the Australia Acts);

• United Kingdom statutes such as the Bill ofRights 1688;

• Letters Patent;

• the common law (that is, the prerogativepowers of the Governor and the case lawconcerning the effect and interpretation of theabove constitutional documents and sources);and

• constitutional conventions.

2.3.2 Related Western Australian Legislation

Many matters which relate to our governmentalprocess are set out in ordinary Acts of Parliament.Electoral laws define such matters as the right tovote, to stand for election and compulsory voting.Few of the powers of the office of the Governorare found in our constitutional documents. Littlemention is made of the judiciary in constitutionaldocuments, though the Supreme Court Act 1935sets out most aspects of the operation of theSupreme Court. Statutory Officers such as theAuditor General have their powers defined inspecific legislation and are nowhere referred to inthe Constitution.

2.3.3 Conventions

A number of the key aspects of the operation ofgovernment rely on accepted practices which areoften labelled conventions. Some of these apply tothe most important features of day to daygovernment such as:

• the office and role of the premier;

• the composition and powers of the cabinet;

• the responsibility of ministers to Parliament;and

• the ministry’s relationship with the Governor.

There is often debate as to the scope and nature ofthese conventions and they are matters which arenot usually open to challenge in the courts. Anargument favouring reliance upon conventions is

Page 9

that they leave significant scope for flexibility andthe evolutionary development of many of the rulesof our system. The opposing argument is thatconventions reflect uncertainty about the operationof key aspects of our governmental system andprovide no clearly defined yardstick by which theconduct of the executive can be critically assessedand checked.

2.3.4 The Commonwealth Constitution andthe Australia Acts

Upon federation, state constitutions were notreplaced and the Commonwealth Constitutionspecifically recognises their continued existence(Commonwealth Constitution, s.106).

The Commonwealth Constitution prevails over theState Constitution where there is anyinconsistency (Commonwealth Constitution,s.109) but the Commonwealth Constitution saysvery little about the State Constitution or thesystem of government at state level, leaving this tothe state parliaments.

State constitutions were also affected by thepassing of the Australia Acts 1986. These Actscomprise a United Kingdom, Commonwealth andstate legislative package passed by all eightParliaments which aimed to sever theconstitutional ties between Australia and theUnited Kingdom. The precise effect of theAustralia Acts has been controversial. Onecommentator has noted that:

... from the point of view of a state constitutional lawyer, theultimate effect of the Australia Acts could range anywherefrom the subjection of state constitutional institutions to thelegislative power of the Commonwealth, to theirentrenchment beyond the power of the State Parliamentsconcerned. (Craven, 1990: 365)

The following are some of these uncertainties:

• Does the United Kingdom Act represent atotal abdication of power on the part of theUnited Kingdom Parliament to legislate inrespect of Australian matters?

• Are the Australia Acts constitutionaldocuments or are they ordinary legislation?and

• Do the Australia Acts enhance stateconstitutional powers?

2.3.5 Accessibility of Constitutional Laws

It is difficult for members of the public to locateand gain a coherent understanding of ourconstitutional laws. The 1995 Report of theWestern Australian Constitutional Committeepointed out that:

... many Western Australians are unaware of the existence ofthe State Constitution, let alone of its content andsignificance. It is important for people to know about theirState Constitution, both because it represents theachievement of self-government for Western Australia andbecause it is the foundation on which Western Australia’spolitical institutions are based. Yet as it stands, the StateConstitution is a ‘closed book’ to the great majority, partlybecause of its style and format. (McCusker, 1995: 101)

2.4 Changing the Constitution —Amendment Procedures

2.4.1 Entrenchment

The term entrenchment is often used to refer tosome special procedure which is required toamend either part or the whole of a law. Someexamples of commonly used entrenchmentprocedures include a requirement forconstitutional amendment to be approved by:

• referendum (a majority of electors voting infavour of the change); and

• special, rather than simple majorities in bothhouses of parliament.

An absolute or constitutional majority is at leastone more than half of the total membership of alegislative chamber. In the Western AustralianLegislative Assembly with a membership of 57, ifthere are only 30 members in the House during adivision, a vote of 16 supporting the measurewould constitute a simple majority, but anabsolute majority remains at 29 (half the totalmembership of the chamber plus one).

Page 10

The whole of the Commonwealth Constitution isentrenched and can only be amended by areferendum in which a majority of electors andmajorities in a majority of states vote in favour ofa change (Commonwealth Constitution, s.128). Incontrast, many provisions in state constitutions arenot entrenched and can be altered by ordinarylegislative processes.

The source of power for state parliaments to enactentrenchment was confirmed in s.6 of theAustralia Act 1986 (Cwlth). This section provides:

Notwithstanding sections 2 and 3(2) above, a law made afterthe commencement of this Act by the Parliament of a Staterespecting the constitution, powers or procedure of theParliament of the State shall be of no force or effect unless itis made in such manner and form as may from time to timebe required by a law made by that Parliament, whether madebefore or after the commencement of this Act.

2.4.2 Existing Entrenchment Provisions

Section 73 of the Constitution Act 1889 provides:

73. (1) Subject to the succeeding provisions of thissection, the Legislature of the Colony shall have full powerand authority, from time to time, by any Act, to repeal oralter any of the provisions of this Act. Provided always, thatit shall not be lawful to present to the Governor for HerMajesty’s assent any Bill by which any change in theConstitution of the Legislative Council or of the LegislativeAssembly shall be effected, unless the second and thirdreadings of such Bill shall have been passed with theconcurrence of an absolute majority of the whole number ofthe members for the time being of the Legislative Counciland the Legislative Assembly respectively. Provided also,that every Bill which shall be so passed for the election of aLegislative Council at any date earlier than by Part IIIprovided, and every Bill which shall interfere with theoperation of sections 69, 70, 71, or 72, or of Schedules B, C,or D, or of this section, shall be reserved by the Governor forthe signification of Her Majesty’s pleasure thereon.

(2) A Bill that –

(a) expressly or impliedly provides for theabolition of or alteration in the office ofGovernor; or

(b) expressly or impliedly provides for theabolition of the Legislative Council or of theLegislative Assembly; or

(c) expressly or impliedly provides that theLegislative Council or the Legislative

Assembly shall be composed of membersother than members chosen directly by thepeople; or

(d) expressly or impliedly provides for areduction in the numbers of the members ofthe Legislative Council or of the LegislativeAssembly; or

(e) expressly or impliedly in any way affects anyof the following sections of this Act,namely –

sections 2, 3, 4, 50, 51 and 73,

shall not be presented for assent by or in the nameof the Queen unless –

(f) the second and third readings of the Bill shallhave been passed with the concurrence of anabsolute majority of the whole number of themembers for the time being of the LegislativeCouncil and the Legislative Assembly,respectively; and

(g) the Bill has also prior to such presentationbeen approved by the electors in accordancewith this section,

and a Bill assented to consequent upon itspresentation in contravention of this subsectionshall be of no effect as an Act.

This section sets out a list of matters which canonly be amended by the special procedures itprescribes. In a High Court decision, WesternAustralia v Wilsmore (1982) 149 CLR 79, it washeld that the original version of s.73 (which is nowcontained in subsection 73(1)) was confined toamendments to the Constitution Act 1889 itself. Itdid not apply to any other legislation, even thoughthe legislation might reasonably have beenregarded as having the effect of changing theConstitution and did not apply to the ConstitutionActs Amendment Act 1899. Subsection 73(2) nowextends the entrenchment effect to otherlegislation dealing with the specified matters insubsection 73(2), even if that legislation is not adirect amendment to the Constitution Act 1889.

The full list of specified matters entrenched by theConstitution Act 1889 may be broadly summarisedas follows:

Page 11

• Bills affecting amendments to theConstitution Act 1889 itself (s.73(1));

• Bills which, although they may not directlyalter the Constitution Act 1889 itself,expressly or impliedly:

– provide for the abolition of, or thealteration in, the office of Governor;

– provide for the abolition of theLegislative Council or of the LegislativeAssembly;

– provide that the Legislative Council orthe Legislative Assembly shall becomposed of members other thanmembers chosen directly by the people;

– provide for a reduction in the numbers orthe powers of the Legislative Council orthe Legislative Assembly;

– affects in any way any of the specifiedsections of the Constitution Act 1889,namely ss 2, 5, 4, 50, 51 and 73 (s.73(2)).

Those specified matters are entrenched or subjectto manner and form requirements. Legislativeprovisions governing those matters can now onlybe amended by Bills which are enacted afterfollowing the procedure specified in s.73, that is:

• the second and third readings of the Bill mustbe passed by an absolute majority of thewhole number of the members for the timebeing of the Legislative Council andLegislative Assembly; and

• the Bill must be approved by electorsqualified to vote for the election of membersof the Legislative Assembly (ie byreferendum).

It should be noted that the entrenchment effect ofs.73 is also subject to the same requirements foramendment. That is, any amendment to theentrenching effect of s.73 itself must comply withthe above procedure. This is an example of doubleentrenchment.

Aside from those matters specified in s.73,constitutional amendments do not have to beapproved by referendum. A large portion of theconstitutional structure of the State can thereforebe changed by the government of the day withoutdirect reference to the citizens of the State. Somefundamental aspects of constitutional law inWestern Australia are not set out in theConstitution or in any other legislation and existonly by way of convention and therefore are notprotected by any such entrenchment provisions.

The question, therefore, is raised whether certainof those issues (as listed in s.3, Issues forConsideration, below) should be reduced towriting in a constitutional document and, if so, arethose issues so fundamentally important that theyshould be protected from amendment bysubsequent parliaments by entrenchmentprovisions.

A review of decisions handed down by the Courtssuggest that certain requirements must be satisfiedbefore entrenchment provisions, such as those ins.73, will be enforceable:

1. The provision must be mandatory, not merelypermissive.

2. The provision must relate to the legislativeprocess:

The manner and form requirement must relateto the constitution, powers or procedure of theLegislature (Parliament). Examples of suchlegislation would probably include provisionsregulating the number of members of Housesof Parliament, the procedure required to befollowed by the Legislature, requirements asto the passage of Bills, the duration of theLegislature and its powers to enact legislation.

3. The provision must not abdicate legislativepower:

A distinction is drawn between provisionswhich regulate the manner in whichlegislation is enacted (which are validentrenchment provisions) and provisionswhich substantively deprive a future

Page 12

parliament of power to legislate in respect ofcertain matters. An example would be torequire that certain legislation be approved byan entity outside of the legislative process,such as a company.

If an entrenchment provision is valid, theprocedures it lays down must be followed for validlegislation to result.

There appears to be little doubt that therequirements of s.73 of the Constitution Act 1889are valid and binding. Accordingly, amendmentsto legislation concerning the matters listed in thatsection must be followed if the amendment is tobe valid.

The Electoral Distribution Act 1947 alsoprescribes an absolute parliamentary majority foramendments to that Act (s.13).

2.5 Reviewing the Constitutional Laws of theState

2.5.1 Constitutional Change

The Constitution Act 1889 has had fewfundamental changes since 1890, but there havebeen a number of inquiries which have reviewedaspects of our constitutional laws. The mostsignificant Western Australian reviews arementioned below in 2.5.2 and 2.5.3. There havealso been judicial decisions which have affectedthe scope of the Constitution and, in particular, thelimitations on the State Parliament to bindsuccessive Parliaments by restricting the mannerand form of legislative amendments. One of themost important decisions is Western Australia vWilsmore (1982) 149 CLR 79. Central to thisdecision, was the High Court’s interpretation ofs.73 to confine it to provisions found within theConstitution Act 1889 itself and not theConstitution Acts Amendment Act 1899 or otherconstitutional laws. Because of legal uncertaintysurrounding the scope of s.73, it has beensuggested a consolidation or even a mere re-numbering of some of the provisions of these twoActs, would require approval by referendum(Kobelke, 1991: 29).

2.5.2 The Kobelke Report

In 1990, the Western Australian Parliamentestablished a Joint Select Committee on theConstitution chaired by John Kobelke MLA. Itsterms of reference were:

(1) to create opportunities for community discussionconcerning possible areas of constitutional reform andto provide the Parliament with a reasoned summary ofproposals for reform;

(2) to give consideration to consolidating the law, practiceand statutes comprising the constitution of WesternAustralia;

(3) to make recommendations concerning making this bodyof law and practice more readily accessible by thecitizens of this State. (Kobelke, 1991: 1)

The Committee’s report was presented to theParliament in 1991. It contained:

• a summary of possible areas for constitutionalreform, including discussion of proposals fora bill of rights, acknowledgment of theindigenous people of Western Australia, theelectoral system, the role of the Governor andcitizen initiated referendums;

• a draft consolidated State Constitution;

• recommendations for the establishment of aJoint Standing Committee for ConstitutionalReform to promote community debate andoversee a process of gradual constitutionalreform; and

• publication of a booklet for a generalreadership to clarify the nature of the StateConstitution.

The Committee noted that it had not attempted toprovide specific solutions or recommendparticular reforms. Its gradualist approach wasbased on past experience of the difficulty inachieving major constitutional change; the needfor raising community awareness and providingopportunities for wide discussion (Kobelke, 1991:22). To date, the Committee’s recommendationshave not been implemented.

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2.5.3 The McCusker Report

The Western Australian ConstitutionalCommittee, chaired by Malcolm McCusker QC,was established by the Premier, the Hon. RichardCourt MLA, in October 1993. The Committee’sterms of reference covered: Australia’s federalsystem of government; the distribution of powersbetween the Commonwealth and states; theimplications of a move to a federal republic forWestern Australia; and ways of involving thepeople in decision making on these matters. Themain focus of the Committee’s inquiry was theCommonwealth Constitution.

The Committee’s report included the followingfindings and recommendations on the StateConstitution:

• by an amendment to the CommonwealthConstitution, it was possible that stateconstitutions could be amended to make eachstate a republic, whether or not a majority ofelectors were in favour. In theory, it was alsopossible for the Commonwealth to become arepublic while member states remainedconstitutional monarchies (McCusker,1995: 7);

• ‘if the monarchy were removed from the StateConstitution, Western Australia should retaina head of state of the same standing, andpossibly the same title, as the Governor’(McCusker, 1995: 12); and

• that the ‘State Constitution Acts beconsolidated in a single Act in a manner thatfacilitates teaching about its key features’(McCusker, 1995: 13).

The Premier announced that funding would beprovided to allow further consideration of anumber of the recommendations (WAPD,Legislative Assembly, 29 June 1995: 6381).


3.1 What Should Be Included in aConstitution?

The following sections explore the desirability ofcertain matters being included in the Constitution.Apart from content, however, there are issuesabout the form and style that a constitution shouldtake. Language and format affect ease ofunderstanding and how a constitution will be used.The United States model provides an example of aconstitution that was designed to be accessible tothe people. It is concise, written in plain Englishand can be used in schools as the basis of civicseducation.

In contrast, Australian constitutions provide only abare outline of some of the basic institutions ofgovernment. There is a significant gap betweenthe framework set out in our constitutionaldocuments and how our system operates inpractice.

The components of government that might beincluded in a state constitution are set out below.

3.1.1 The Role of the Governor and theExecutive Council

The Constitution establishes the office ofGovernor (Constitution Act 1889, s.50) yet there isonly brief reference to the way in which theconstitutional powers and duties of a Governor areto be exercised. Additional sources of powerinclude the Australia Acts 1986, and instrumentsof the royal prerogative known as Letters Patent.These constitutional powers include the power:

• to summon and prorogue the Houses ofParliament;

• to assent to legislation;

• to dissolve the Legislative Assembly;

• to issue writs for general elections; and

• to appoint ministers of state.

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Some of these powers are conferred on theGovernor alone while others require the advice ofthe Executive Council. Significant constitutionalpower is vested in the Governor. It has been anestablished practice that such power is usuallyexercised in accordance with ministerial advice.The Constitution refers to the Executive Councilbut does not define its method of operation(Thornton, 1995). While in reality the ExecutiveCouncil merely formalises cabinet and ministerialdecisions, the Constitution does not specificallyrefer to the cabinet or its role in our system ofgovernment.

The Australia Act 1986 (Cwlth) also affects therole of the Governor. Section 7 provides that theGovernor is to exercise all of the functions andpowers (including, presumably, both statutory andprerogative powers) in respect of the State, exceptfor the power to appoint or terminate theappointment of the Governor. However, when theQueen is personally present in the State, she mayexercise any of the powers of the Governor,although the Governor is not precluded fromexercising those powers during that time. It is alsospecifically provided that advice in respect of theexercise of the Governor’s powers shall betendered by the Premier of the State. The previousfunction of acting as the conduit of advicebetween the government and the Queen has beenabolished.

Important Issues

• Should the role, responsibilities andpowers of the Governor be set out inthe Constitution?

• Should the Constitution specify the wayin which the Governor exercisesconstitutional powers?

• Should the Constitution stipulate that aGovernor acts in accordance withadvice of ministers?

• Should the Constitution recognisecabinet and specify its role andrelationship with the Governor?

3.1.2 The Role of the Premier

The office and role of the premier are notspecifically mentioned in the Constitution. Section7(5) of the Australia Act 1986 (Cwlth) does,however, refer to the office of the premier.Similarly, the fact that the premier holds officeonly with the confidence of the LegislativeAssembly, is not stated. The role and function ofthe office of premier rely only upon conventions.The Constitution vests significant executive powerin the office of Governor while, in reality, most ofthese powers are, by convention exercised uponministerial advice.

Important Issues

• Should the office and the role of thepremier as the head of government berecognised in the Constitution?

• Should the Constitution set out therelationship between the premier andthe Governor?

3.1.3 The Role and Responsibility of Ministers

The Constitution refers to ‘principal executiveoffices of the Government liable to be vacated onpolitical grounds’ (Constitution Act AmendmentAct 1899, s.43). The holders of these offices of thegovernment are called Ministers of the Crown.There is no express requirement that all ministersmust be chosen from and answerable to theParliament. Yet this requirement is considered tobe one of the key features of parliamentaryresponsible government.

It has been pointed out that ‘ ... the mostfundamental rules of the model are nowherespelled out in state constitutions: that ministersmust be appointed from the party or groupcontrolling the lower house of the legislature andthat the Governor must accept their advice’ (Ward,1993: 173).

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Important Issues

• Should the functions, powers and dutiesof ministers be expressly stated in theConstitution?

• Should the Constitution require thatministers should be Members ofParliament?

3.1.4 The Size of the Ministry in Relationshipto the Size of Parliament

There is a present constitutional limit of 17 on thenumber of ministers and a requirement that oneminister be a Member of the Legislative Council.This was not always the position. Originally therewas a constitutional limit of five ministers in aParliament of 45 members. It has been noted that:

This constituted only 21 per cent of the minimum number ofvotes necessary to control the parliament. Today, ... thatfigure is 45 per cent. There is nothing magical about theoriginal ratio of ministers to members of parliament, but thecurrent figure is much too high to allow any progress to bemade towards re-establishing a balance between parliamentand government. (Stone, 1994: 65)

Important Issue

• Should the Constitution limit thenumber of ministers and the house fromwhich they are to be drawn?

3.1.5 The Role and Responsibilities ofMembers of Parliament

Some of the matters which are mentioned in theConstitution include the:

• composition of Parliament;

• conduct of parliamentary business;

• adoption of standing rules and orders;

• selection and payment of officials;

• privileges of Parliament; and

• qualification and disqualifications ofmembers.

In addition, the Constitution requires members totake a prescribed oath or affirmation before takingtheir seats. This oath or affirmation only requiresmembers to pledge allegiance to the Queen.

Little mention is made of the role andresponsibilities of Members of Parliament in theConstitution and there is no constitutionalrecognition of the part played by political partiesin the parliamentary process.

Important Issues

• Should the role and responsibilities ofMembers of Parliament becomprehensively set out in theConstitution?

• Should the constitutionally prescribedoath/affirmation also state some of theduties expected of Members ofParliament?

• Should there be constitutionalrecognition of the role and function ofpolitical parties in the parliamentaryprocess?

3.1.6 Parliament

Compared with other components of thegovernmental system, the institution of Parliamentis given detailed attention in the Constitution.Legislative power is vested in the Queen and twoHouses of Parliament (Legislative Assembly andLegislative Council). The Constitution providesfor a representative elected legislature. Thenumber of members (57/34) and their manner ofelection is prescribed, with membership in theLegislative Council being about half themembership of the Legislative Assembly. Someprovision is made for rules regulating the conductof parliamentary business, parliamentary privilege

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and the procedures and qualifications of members.There is a specific constitutional requirement thatthere be a session of both Houses of Parliament‘once at least in every year’ (Constitution Act1889, s.4). Absent, however, is any clarification ofthe relationship between the Houses and theirrelationship with the executive.

Important Issues

• Should the Constitution clarify therelationship between the Houses ofParliament and their relationship withthe executive?

• Should the Constitution set out the rolesand responsibilities of the two Housesof Parliament?

3.1.7 The Relationship of the Government andParliament

A fundamental principle of our system ofgovernment is the requirement that thegovernment of the day must maintain majoritysupport in the Legislative Assembly. Having beenchosen from Parliament, governments areresponsible to the Parliament on whose confidencethey depend. Yet this is not explicitly expressed inthe Constitution.

The Constitution provides that the Governor haspower to dissolve the Legislative Assembly, toprorogue the Houses, and to issue writs for anelection. In practice, these powers are usuallyexercised on the advice of the premier.

Important Issue

• Should the principles of parliamentaryresponsible government be expresslyset out in the Constitution?

3.1.8 Independent Accountability Officials

Independent accountability officials such as thoselisted below are not mentioned in the State’sConstitution despite their importance in oursystem of government:


• Commissioner for Equal Opportunity;

• Commissioner for Public Sector Standards;

• Director of Equal Opportunity in PublicEmployment;

• Director of Public Prosecutions;

• Electoral Commissioner and Deputy ElectoralCommissioner;

• Information Commissioner;

• Official Corruption Commissioners;

• Parliamentary Commissioner forAdministrative Investigations (Ombudsman)and Deputy Parliamentary Commissioner forAdministrative Investigations (DeputyOmbudsman); and

• Solicitor General.

In the case of the Auditor General, limitedreference to auditing is made in s.65 of theConstitution Act 1889. This section makesprovision for auditing of the Consolidated Fund.The details relating to the functions, appointment,dismissal and resources available to the AuditorGeneral are left to other legislation such as theFinancial Administration and Audit Act 1985.

As an example, the Republic of South Africa hasspecifically incorporated the role of the AuditorGeneral in its Constitution. In recognising the roleof the Auditor General, the Constitution of theRepublic of South Africa Act 1993 has alsoincluded sections on the establishment,appointment, independence, powers and functionsand expenditure of the position.

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Important Issue

• Should the functions, powers and dutiesof independent accountability officialsbe set out in the Constitution?

3.1.9 The Judiciary

The independence of the judiciary from theexecutive is often said to be a fundamentalprinciple of our system of government. It requiresthat the judiciary be able to exercise its functionsand administer justice in accordance with the lawin an unbiased manner, without fear or favour, freefrom government or official influence or threat.

At the federal level, the separation of powersdoctrine embodied in the CommonwealthConstitution separates judicial powers (s.71) fromthe legislative or executive powers (ss 1 and 61respectively). The State Constitution does notembody the separation of powers doctrine in thesame clear way as the CommonwealthConstitution. In state constitutions, a generaldoctrine of separation of powers subsists by wayof convention. There is no clear legislativeimpediment provided for in the Constitution toprevent Parliament from legislating in a waywhich may encroach upon the exercise of judicialpower.

By reason of s.72 of the CommonwealthConstitution, Judges of the High and federalCourts are only liable to be removed if there is anaddress from both Houses of Parliament and onlyif there are proved grounds of misbehaviour orincapacity. The fixed tenure together with theclear separation of powers, secures theindependence of the judiciary and prevents thepossibility of interference from the federalexecutive. Those provisions, being part of theCommonwealth Constitution, are also entrenched.

In contrast, ss 54 and 55 of the Constitution Act1889 merely provides that the tenure of SupremeCourt judges exists during their ‘good behaviour’and is liable to be removed by the Governor (onbehalf of the Queen) on an address by both the

Legislative Council and Legislative Assembly.Those provisions are not listed in s.73(2) of theConstitution Act 1889 and are not protected to thesame extent as those specifically listed matters.

Victoria entrenches its Supreme Court in itsConstitution but only to a limited degree.Provisions were recently inserted in the NewSouth Wales Constitution following a successfulreferendum, to entrench the independence of thejudiciary (Constitution (Entrenchment)Amendment Act 1992 (1995) No. 2 (NSW)).

It has been pointed out:

Probably any worthwhile entrenchment provisions wouldhave to extend to protect at least the existence andjurisdiction of the Supreme Court, and the occupancy byjudges of all courts of their positions in the court to whichthey are appointed at least while that court remains inexistence either in form or in substance. (King, 1994: 33)

Important Issues

• Should the Constitution entrenchaspects of judicial independence?

• To what extent should the court systembe included in the Constitution?

3.1.10 Local Government

Local government was formally recognised inWestern Australia’s Constitution in 1979 with theinclusion of Part IIIB of the Constitution Act 1889.This section, however, does little more thanrecognise the existence of a system of localgovernment, leaving the details to be fleshed outby other legislation such as the Local GovernmentAct 1960.

Western Australia’s system of local government isnot protected by a special amendment procedurein the Constitution. This contrasts with thesituation in South Australia, Victoria andQueensland. In South Australia and Victoria anabsolute majority of both houses of stateparliament is required for the system of localgovernment to be abolished, whilst in Queensland

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a referendum is required to remove the system oflocal government.

Important Issues

• Should local government be entrenchedin the Constitution?

• If so, should its elective nature beentrenched (possibly subject to Stategovernment intervention in cases ofcorruption or gross maladministration)?

3.1.11 A Bill of Rights

There is no comprehensive statement of rightsfound in any Australian constitution, state orCommonwealth. Recently, the High Court hasfound an implied right of freedom ofcommunication in political matters, but the scopeof these implied rights and the extent to whichthey can be found in state constitutions is stilluncertain (Nationwide News Pty Ltd v Wills (1992)177 CLR 1; Australian Capital Television Pty Ltdv Commonwealth (ACTV) (1992) 177 CLR 106;Theophanous v Herald & Weekly Times Ltd(1994) 182 CLR 104; Stephens v West AustralianNewspapers Ltd (1994) 182 CLR 211).

At both the state and federal level there islegislation concerning issues of human rightswhich supplements the common law. It can beargued however that rights are only adequatelyprotected by constitutional entrenchment. On theother hand, the constitutional entrenchment of astatement of rights would confer considerablepower on the judiciary.

Given that a bill of rights could quite conceivablytouch upon a wide range of principles that may notrelate to the constitution, powers or procedure ofthe Legislature, which, as the case law suggests, isa necessary requirement for a valid andenforceable entrenchment provision, (see section2.4.2), it may be that particular aspects of a bill ofrights could not be easily protected fromsubsequent amendment by entrenchment.Although it is beyond the scope of this Discussion

Paper, it should be noted that difficult issues oflaw may arise in this regard.

Important Issue

• Would it be desirable to include astatement of rights in the Constitution?

3.1.12 A Preamble

The preamble to a constitution may be used toexpress the shared values and aspirations of acommunity.

The preamble to the Constitution Act 1889 merelysets out the legal background to its enactment. Theonly aspiration that is explicitly stated is containedin another section describing the function of theParliament, which is: ‘ ... to make laws for thepeace, order, and good Government of the Colonyof Western Australia ... ’ (s.2(1)).

The following are matters which might beincluded in a new preamble:

• sovereignty of the people as the source ofconstitutional laws;

• the rule of law;

• acknowledgment of indigenous people;

• the environment; and

• equal treatment of all people regardless ofrace, culture, sex, creed or religion.

Important Issues

• Should the Constitution have a newpreamble?

• If so, what should it contain?

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3.2 Particular Issues

3.2.1 Resolution of Deadlocks

The Constitution provides for two Houses ofParliament with similar powers. There are somedifferences, one of the most important of whichrelates to supply Bills, namely:

• money Bills must originate in the LegislativeAssembly; and

• the Legislative Council may refuse to passany Bill but cannot amend certain moneyBills (although it may return such Billsrequesting amendments providing they do notincrease any burden on the people).

There is no procedure set out in the Constitution,or any other legislation, for the resolution of thedeadlock created where the Legislative Councilrefuses to pass a supply Bill. The Standing Ordersof each House allow for a conference of managersto try to reach agreement but if no agreement isreached, the Bill fails. A compromise mustsomehow be reached between the two Houses.One possible procedure includes dissolution ofeither one or both Houses of Parliament. It can beargued that a dissolution of both Houses to resolvea deadlock satisfies the principle of accountabilityas it forces the issue back to the people to decide.Recommendations for the inclusion of deadlockprocedures were made by the Royal Commissioninto Parliamentary Deadlocks in WesternAustralia (Edwards Royal Commission) which, insummary, concluded that the following meansshould be prescribed:

• for supply Bills — a suspensory veto by theLegislative Council in which a supply Bill notpassed by it within a certain period of time,could be presented to the Governor for Assentand become a law without the Council’sconsent; and

• for other Bills — a method based upon themodel contained in the CommonwealthConstitution (both Houses of Parliament maybe dissolved and an election held where a Billhas not been passed by the Senate and after a

number of procedural requirements have beenmet) (Edwards Royal Commission, 1984:71-79).

It was also suggested in the Report of the EdwardsRoyal Commission that the method of resolvingdeadlocks proposed for Bills other than supplyBills should be the same for deadlocks relating toBills to effect constitutional amendments (1984:77-79).

If adopted, these provisions could have significantimplications for the relative power of the Houses.

Important Issues

• Should the Constitution prescribe amethod for resolving deadlocks ordisagreements between the Houses ofParliament?

• Should the method differ for supplyBills compared with other Bills?

3.2.2 Removal From Office

There are some government officials whoseindependence is considered vital for the effectiveoperation of our system of government. In order toguarantee their independence from executivecontrol additional protections are built into oursystem to ensure that such officials are notremoved arbitrarily. These include:

• judges;

• industrial commissioners;


• Parliamentary Commissioner forAdministrative Investigations (Ombudsman)and Deputy Parliamentary Commissioner forAdministrative Investigations (DeputyOmbudsman);

• Information Commissioner; and

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• Commissioner for Public Sector Standards.

A resolution of both Houses of Parliament isrequired for the removal of such officers.Parliament may be considered an appropriateinstitution to guarantee an independent decision onremoval, yet in the event of an allegation ofmisbehaviour, it may need assistance to carry outan inquiry. As an example, in the case of JusticeVasta and Judge Pratt of the Supreme and Districtcourts of Queensland, a Parliamentary JudgesCommittee of Inquiry was established to advisethe Queensland Parliament on whether theirbehaviour warranted removal from office(Parliamentary (Judges) Commission of InquiryAct 1988 (Qld)). New South Wales is the onlyAustralian jurisdiction which has a JudicialCommission which deals with complaints againstjudicial officers (Judicial Officers Act 1986(NSW)).

Important Issue

• Should constitutional procedures becreated to assist Parliament in decidingon the removal of those officers forwhom an address of both Houses ofParliament is a prerequisite? If so, howshould it operate and how can itsindependence be assured?

3.3 Status of a Constitution?

3.3.1 Constitutional Change andEntrenchment

The status of a constitution will largely dependupon the ease with which it can be amended by thegovernment of the day. Supporters of the notion ofa constitution as a higher law see merit in limitingthe powers of the legislature to amend aconstitution. Entrenchment of the whole, or part,of a constitution makes it more difficult for anincumbent government to make constitutionalchanges without broad support. On the other hand,opponents argue that a constitution should not begiven any special status because it usurps orfetters the power of future parliaments and thus

presumably the will of the current popularmajority.

This raises the question of the extent to which ademocratically elected parliament should belimited by some higher law.

Important Issues

• Should the Constitution be consideredhigher law which can only be changedby approval at a referendum or someother special procedure?

• Should all or only certain parts of theConstitution be subject to specialamendment provisions?

• What form of entrenchment isappropriate?

3.4 Amending Procedures

3.4.1 Special Parliamentary Majorities

Constitutional or other special majorities serve torestrict parliament from altering a constitutionwithout broad approval among parliamentarymembers. This preserves the nature of aconstitution and its status as higher law. Anabsolute majority of both Houses of Parliament inWestern Australia is the special majorityrequirement found in s.73 of the Constitution Act1889. Similarly, an absolute majority is requiredbefore any amendments can be made to theElectoral Distribution Act 1947.

An example of a different special majorityrequirement is that contained in the TasmanianConstitution. It requires that any legislation whichwill affect the maximum term of the TasmanianLegislative Assembly, must be passed by a twothirds majority of the members (Constitution Act1934 (Tas.), s.41A).

These special majority requirements are designedto safeguard provisions in constitutions which areconsidered to be significant enough to entrench.

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Important Issues

• Should Western Australia retain thespecial majority provisions foramending the Constitution?

• Should other amending procedures beadopted?

3.4.2 Referendum

The popular referendum is a procedure forallowing the whole electorate to express itssupport or opposition to a particular question putto the electors. Referendums have been used inAustralia to gauge public attitudes to particularissues and as a form of constitutionalentrenchment.

The advantage of a referendum requirement forconstitutional amendment is that it restrainsgovernments from changing constitutional ruleswithout broad public support, and gives theconstitution legitimacy as a higher law. Thedisadvantage is that the process may be costly andmay make constitutional change difficult(assuming the desirability of the proposedchange). All but eight of the 42 proposals toamend the Commonwealth Constitution put to areferendum have failed. It could be that this lowsuccess rate has more to do with howCommonwealth constitutional amendments areinitiated and the partisan background toreferendum campaigns than the referendumprocess itself (Galligan, 1995: 110-132). Of noteare the recent successful referendum proposals inNew South Wales which have resulted insignificant constitutional changes (Constitution(Entrenchment) Amendment Act 1992 (1995) No.2 (NSW)).

At present, for both the states and theCommonwealth, only the government of the daycan initiate the process for submitting proposalsfor constitutional change to the electors at areferendum. No referendum has been held inWestern Australia under s.73 of the ConstitutionAct, nor was a referendum used to adopt this

section. There is specific legislation for holdingreferendums in this State but it has so far beenused only for non-constitutional matters(Referendum Act 1983).

Important Issues

• Is a referendum procedure theappropriate way to ensure publicinvolvement in the process ofconstitutional change?

• Should all proposals for constitutionalchange be submitted to a referendum?

• Should there be procedures forinitiating constitutional change that arenot controlled by the government of theday?

3.4.3 Citizen Initiated Referendum (CIR)

There have been calls for more publicinvolvement in the initiation of constitutionalchange, with suggestions that proposals forconstitutional referendums should be able to bemade directly by the public. This raises thebroader question of the scope for direct democracyin the Western Australian system ofgovernment — the citizen initiated referendum(CIR).

CIR is shorthand for a variety of procedures toenable citizens to initiate popular referendums onlaws, constitutional issues, or the recall of officeholders, usually by gaining support for areferendum in a petition (Cwlth Department of theParliamentary Library, 1994: 5; Jaensch andTeichmann, 1992: 43). CIR is in use inSwitzerland and in several states of the UnitedStates.

Arguments supporting CIR stress that it helpsalleviate the feeling of remoteness experienced bymany people with respect to political affairs, andthat it can force governments, parliaments andoffice holders to be directly accountable to thepublic. Opponents of CIR maintain that it would

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undermine our system of representativegovernment, and would be open to manipulationby wealthy interest groups.

Important Issues

• Should there be a procedure to enableproposals for constitutional change tobe made directly by the public?

• Should CIR be adopted as part of oursystem of government?

3.4.4 People’s Convention

Another method of ensuring greater popularparticipation in the process of constitutionalchange is the people’s convention. This is a bodythat is either elected or appointed (or somecombination of the two) to represent a wide rangeof views in the community. People’s conventionshave been set up to formulate new constitutions orto revise existing ones. A series of suchconventions in the 1890s drafted the currentCommonwealth Constitution, and between 1973and 1985 the Australian Constitutional Conventionwas established by the states, and theCommonwealth to consider constitutionalamendment. The Northern Territory, theAustralian Capital Territory and local governmentwere also represented at these conventions.

People’s conventions have not been used toformulate or revise state constitutions in Australia,even though they might enable greater popularinvolvement in constitutional change.

Important Issue

• Would a people’s convention be asuitable procedure for initiating,drafting or ratifying proposals forconstitutional change?

3.5 A New Constitution

Recommendations for changes to ourconstitutional laws range from consolidation ofexisting laws to a radical rewriting whichincorporates an alternative system of government.Some advocate nothing short of wholesaleconstitutional redesign. They argue that ouradapted version of the Westminster system placestoo much power in the hands of the Executive(O’Brien & Webb, 1991).

Others argue that the Constitution only requiressmall scale changes. The Kobelke Report 1991recommended that minor modifications of theexisting Constitution were all that was necessary.While not discussing the Constitution in anydepth, the 1995 Report of the Western AustraliaConstitution Committee recommended that theState Constitution Acts be consolidated into asingle Act.

Important Issues

• Is a new Constitution required in orderto achieve accountability and opennessin the Western Australian system ofgovernment?

• If a new Constitution were written forthe State, how should the process beinitiated?

• Would a consolidation of existingconstitutional laws suffice?

• What guidelines, if any, should beprovided and by whom?

• What should be the role of thegovernment of the day?

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REFERENCES

Commonwealth of Australia, (Cwlth Departmentof the Parliamentary Library) (1994) CurrentIssue Brief No. 21 – Citizen Initiated Referenda:cure-all or curate’s egg?

Craven, G.J. (1990) ‘A Few Fragments of StateConstitutional Law’ Western Australian LawReview 20: 353-372

Galligan, Brian (1995) A Federal Republic –Australia’s Constitutional System of GovernmentCambridge University Press Melbourne

Jaensch, Dean and Teichmann, Max (1992) TheMacmillan Dictionary of Australian PoliticsMelbourne: Macmillan

Johnston, Peter (1989) ‘The Repeals of Section 70of the Western Australian Constitution Act 1989:Aborigines & Government Breach of Trust’Western Australia Law Review 19: 318-307

Johnston, Peter W. and Hotop, Stanley D. (1990)‘Patches on an Old Garment or New Wineskinsfor New Wine? (Constitutional Reform in WesternAustralia – Evolution or Revolution?)’ WesternAustralian Law Review 20: 428-444

Johnston, Peter (1991) ‘Freeing the ColonialShackles’ in David Black (editor) The House ofthe Hill Perth Western Australian Parliament

King, L.A.C. (1994) The Separation of Powers(paper delivered at the Australian Institute ofJudicial Administration Incorporated Conference,11 November 1994) 1-59

Lijphart, Arend (1984) Democracies: Patterns ofMajoritarian and Consensus Government inTwenty-One Countries New Haven and London:Yale University Press

O’Brien, Patrick and Webb, Martyn (1991) TheExecutive State: WA Inc. and the ConstitutionPerth: Constitutional Press Co. Pty Ltd

Parliament of Western Australia, Joint SelectCommittee of the Legislative Assembly and the

Legislative Council on the Constitution (Kobelke)(1991) Final Report

Queensland, Electoral and Administrative ReviewCommission (1992) Report on Consolidation andReview of the Queensland Constitution Brisbane

Stone, Bruce (1994) ‘Constitutional Design,Accountability and Western AustralianGovernment: Thinking with and Against the ‘WAInc’ Royal Commission’ Western Australian LawReview 24: 51-66

Thorontin, Harold (1995) ‘Executive Councilsand Their Place in Australian WestminsterSystems’ Legislative Studies Volume 9 (2): 65-80

Ward, Alan J. (1993) ‘Responsible Governmentand Recent Constitutional Change in Australia andNew Zealand’ Adelaide Law Review 15: 165-189

Western Australia, Commission on Government(COG) 1995 Background Paper Perth

Western Australia, Royal Commission IntoParliamentary Deadlocks (Edwards RoyalCommission) (1984-5) Report (Volume 1-3),Perth

Western Australian Royal Commission intoCommercial Activities of Government & OtherMatters (WA Royal Commission) (1992) ReportPart II, Perth

Western Australian Constitutional Committee(McCusker) (1995) Report Perth

LEGISLATION

Aborigines Act 1897Australia Act 1986 (Cwlth)Australia Act 1986 (United Kingdom)Australia Act (Request) Act 1985Bill of Rights 1688Constitution Act 1889Constitution Acts Amendment Act 1899Constitution Act 1975 (Vic.)Constitution Act 1934 (Tas.)Constitution Act 1934 (Tas.)

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Constitution (Entrenchment) Amendment Act 1992(NSW)

Constitution of the Republic of South Africa Act1993 (South Africa)

Electoral Act 1907Electoral Distribution Act 1947Financial Administration and Audit Act 1985Judiciary Act 1903 (Cwlth)Judicial Officers Act 1986 (NSW)Local Government Act 1960Parliamentary (Judges) Commission of Inquiry

Act 1988 (Qld)Referendum Act 1983Supreme Court Act 1935

PREROGATIVE INSTRUMENT

Letters Patent, 14 February 1986, GovernmentGazette of Western Australia No. 25

CASES

Australian Capital Television Pty Ltd vCommonwealth (ACTV) (1992) 177 CLR 106

Nationwide News Pty Ltd v Wills (1992) 177CLR 1

Stephens v West Australian Newspapers Ltd(1994) 182 CLR 211

Theophanous v Herald & Weekly Times Ltd(1994) 182 CLR 104

Western Australia v Wilsmore (1982) 149 CLR 79

APPENDIX 1

Some Key Terms

Those who would like to read a summarydescription of the principal components of theWestern Australian governmental system shouldsee the Commission on Government’s BackgroundPaper (COG, 1995: 6-7).

absolute majority:

Legislation requiring an absolute majority to passthrough the two houses of parliament must besupported by one more than half the totalmembership of each house of parliament (that is,not just a majority of the members who happen tobe present and voting).

bill of rights:

A bill of rights is a statement of the fundamentalrights of individuals and groups in a community.A bill of rights usually prevents governments fromlimiting these rights.

citizen initiated referendum (CIR):

CIR is shorthand for a variety of procedures thatenable citizens to initiate popular referendums onlaws, office holders or constitutional issues,usually by gaining support in a petition.

constitution:

The term constitution can refer to one or moredocuments which set out the key elements ofgovernment, or to the combination of written andunwritten constitutional laws and practices thatdescribe how the governmental system isorganised and functions.

Constitution:

In this paper, the term Constitution with a capital‘C’ will refer to the two documents that set outmuch of the governmental machinery of theState – the Constitution Act 1889 and theConstitution Acts Amendment Act 1899 as theyhave been amended to the present.

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constitutional convention:

A practice or procedure that is customarilyfollowed by governments and officials (eventhough not set out in a constitutional law) is oftencalled a constitutional convention.

entrenchment:

A law is said to be entrenched if it can beamended only by fulfilling proceduralrequirements in addition to those required forordinary legislation.

double entrenchment:

Where a law is entrenched, and the provisionsetting out the special entrenching procedure canitself only be changed by following the specialprocedure, the law is said to be doubly entrenched.

higher law:

An overriding law which is considered to have ahigher status than an ordinary law can be referredto as a higher law.

letters patent:

A grant by the Monarch contained in aninstrument not sealed up but exposed with theGreat Seal affixed. In the case of the Governor ofthe State, the Letters Patent provide a source ofconstitutional authority for the Governor as therepresentative of the Crown as head of state.

people’s convention:

A people’s convention is a body, either elected orappointed to represent a wide range of views inthe community, that is called together to considerlegislative or constitutional issues.

preamble:

A preamble is a statement at the beginning of alegal document explaining the background to thedrawing up of the document, its purpose or itsjustification. The preamble to a constitutional law

is not part of the law, but may help in itsinterpretation.

prerogative powers:

The prerogative powers are those executivepowers conferred by the common law (not bystatute) exercisable by the Governor by virtue ofhis position representing the Crown as Head ofState.

referendum:

A referendum enables all voters to express theirsupport or opposition to a particular issue ofimportance. Constitutional laws are oftenentrenched by requiring a proposal forconstitutional amendment to be submitted to areferendum before the amendment can becomelaw.

special majority:

Laws and amendments relating to a particularsubject matter can ordinarily be passed in alegislative chamber if they are supported by amajority of members present and voting,providing that a minimum number of members ispresent in the chamber. A special majority refersto a procedural requirement that a law oramendment must gain the support of more than amajority of the members present and voting on theissue. Examples of special majorities are therequirement for an absolute majority (see above)or for a two-thirds majority for the passing ofcertain laws or amendments.

supply:

Just as parliament must authorise the raising oftaxes, parliamentary assent must be obtained on aregular basis for the expenditure of funds by thegovernment. Supply is the name given to theauthorisation by parliament for the expenditure offunds for the running of government for a periodof the financial year.

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blocking of supply:

Even though there are other Acts which canauthorise the expenditure of funds, if theLegislative Assembly refuses to pass a supply Bill,this is taken as the equivalent of a vote of noconfidence in the government which may have toresign. Where an upper house in a bicameralparliament can refuse to pass supply, the issue israised of the way in which this disagreementbetween the houses should be resolved.