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Accountability of Commonwealth Statutory Authorities and “Responsible Government”

Published online by Cambridge University Press:  24 January 2025

John Goldring
John Goldring*
Affiliation:
Macquarie University
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Abstract

Recently, attention has been drawn to the proliferation in Australia of statutory authorities, which appear to be, to some extent, independent of government control. The Australian Constitution requires responsible government, and this article attempts to determine the extent to which the Constitution permits the establishment of statutory authorities outside the traditional organisational structure of ministerial departments of state, and to what extent such authorities may be independent of ministerial and parliamentary control. On the assumption that responsible government requires some measure of accountability of all parts of the executive government of the Commonwealth, the article examines the extent to which statutory authorities are accountable in accordance with the provisions of the Constitution, and also whether any other areas of law, especially administrative law, may provide some measure of accountability of statutory authorities.

Type
Research Article
Information
Federal Law Review , Volume 11 , Issue 4 , December 1980 , pp. 353 - 385
Copyright
Copyright © 1980 The Australian National University

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References

page 353 note 1 E.g. N.S.W. v. The Commonwealth (1975) 135 C.L.R. 337, 364-365 perBarwick C.J. Other examples are given n. 32 infra.

2 (1920) 28 C.L.R. 129, 146-147.

3 Emy, 'The Public Service and Political Control: The Problem of Accountability in a Westminster System with Special Reference to the Concept of Ministerial Responsibility” in Report of Royal Commission: Australian Government Administration (1976) (hereafter cited as “RCAGA”) Appendix IB.

4 RCAGA 4.4; cf. First Report of the Board of Inquiry into the Victorian Public Service (1974); Wilenski, Review of New South Wales Government Administration .Interim Report. Directions for Change (1978) ch. 3.

5 Senate Standing Committee on Finance and Government Operations (hereafter cited as “Rae Committee”), Statutory Authorities of the Commonwealth . First Report (1979) Parliamentary Paper No. 1/1979, chs 1 and 2.

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

7 E.g. Repatriation Commission v.Kirkland (1923) 32 CL.R. 1.

8 Kernaghan, “Political Control of Administrative Action: Accountability or Window-Dressing?” (1976) 17 Les Cahiers de Droit 927; Harding, Outside Interference (1979) gives an account of political pressures on the Australian Broadcasting Commission.

9 Commonwealth Constitution, ss. 81, 83.

10 Id. s. 56.

11 Harding, op. cit. chs 2, 3, 6.

12 Canada, Privy Council Office, Crown Corporations: Direction, Control, Accountability (1977); Law Reform Commission of Canada Working Paper 25, Administrative Law: Independent Administrative Agencies (1980) especially 13-15.

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

14 Most of what appears in this part of the article is the result of my association with Dr Roger Wettenhall, and is based on his work, notably “Early Railway Management Legislation in New South Wales” (1960) 1 Tasmanian University Law Review 446; “Modes of Ministerialisation” (1976) Public Administration (Part I) 1, (Part II) 425; “Report on Statutory Authorities”, RCAGA Appendix IK; “Commonwealth Statutory Authorities: Patterns of Growth” (1977) 36 Australian Journal of Public Administration 351; “Commonwealth Statutory Authorities: Exploring the Field” (1979) 38 Australian Journal of Public Administration 176. The Canadian position, summarised by Canada Privy Council Office, supra n. 12, 11-15, is similar.

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

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

17 Wettenhall (1960), op. cit.

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

19 Wettenhall (1977), (1979), op. cit.

20 Rae Committee, First Report op. cit. ch. 2; in its Fourth Report (1980) Parliamentary Paper No. 107/1980, the Committee has noted a further growth in the number of statutory authorities.

21 RCAGA para. 4.4.10.

22 Id. para. 4.4.2.

23 Id. para. 4.4.10.

24 Cf. Wilenski, op. cit. paras 3.7-3.12.

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

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

27 Op. cit. 706.

28 Convention Debates (Sydney 1891) 280.

29 Sawer, , Federation Under Strain (1977) 121129Google Scholar; Howard and Saunders, “The Blocking of the Budget and Dismissal of the Government” in Evans, (ed.), Labor and the Constitution 1972-1975 (1977) 258270Google Scholar Cooray, , Conventions, the Australian Constitution and the Future (1979) 150Google Scholar.

30 This difficulty, though not the extent of it, was foreseen by Quick and Garran, op. cit. 706. Cf. Richardson, “The Legislative Power of the Senate with respect to Money Bills” (1976) 50 A.L.J. 273.

31 (1920) 28 C.L.R. 129.

32 New South Wales v. The Commonwealth (1975) 135 C.L.R. 337, 364-365; his statements in Salemi v. MacKellar [No. 2] (1977) 137 C.L.R. 396, 403 are similar in effect. In Victoria v. The Commonwealth (A.A.P. case) (1975) 134 C.L.R. 338, 405-406, Jacobs J. refers to the important role of Ministers in the exercise of executive powers, and in the same case, id. 384, Stephen J. refers to the requirements in ss. 81 and 83 of the Constitution of appropriation of money by the Parliament as an aspect of parliamentary democracy which is basic to the Constitution. The view that the Constitution requires a system of responsible government has been advanced in a number of other cases, e.g. Theodore v. Duncan [1919] A.C. 696, 706; Australian Communist Party v. The Commonwealth (1951) 83 C.L.R. 1, 221-222; R. v. Kirby; ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254, 275; Marks v. The Commonwealth (1964) 111 C.L.R. 549, 554-558.

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

34 See also Cobb & Co. Pty Ltd v. Kropp [1967] 1 A.C. 141.

35 R. v. Kirby; ex Parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254; (P.C.) (1957) 95 C.L.R. 529. But in R. v. Joske; ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1974) 130 C.L.R. 87, 90, 102, Barwick C.J. and Mason J. threw some doubt on the correctness of this decision.

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

37 Canada Privy Council Office, op. cit. 17 draws an analogy between statutory authorities and companies incorporated under companies legislation in terms of the members of governing bodies and their duties, and also in relation to the position of the government in exercising the powers of corporate shareholders on behalf of the public. The analogy may be worth developing, but in legal terms would not seem greatly to assist, despite the organisational similarities between some statutory authorities and some larger private corporations.

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

39 Op. cit. para. 5.1.6.

40 Campbell, , “Parliament and the Executive” in Zines (ed.), Commentaries on the Australian Constitution (1977) 91-92.Google Scholar

41 Ibid.

42 Kernaghan, op. cit. 928.

43 Pearce, Statutory Interpretation in Australia (1974) 35.

44 E.g. Attorney-General ,(N.S.W.) v.Brewery Employees' Union of New South Wales (Union Label case) (1908) 6 C.L.R. 469, where the majority of the Court used the maxim to support the limitation of Commonwealth powers under the doctrine of “reserved powers”; cf. the dissenting judgment of Higgins J.(611-612).

45 (1920) 28 C.L.R. 129.

46 Victoria v. The Commonwealth (1975) 134 C.L.R. 338.

47 (1926) 39 C.L.R. 1.

48 (1935) 52 C.L.R. 533.

49 (1962) 107 C.L.R. 46.

50 Id. 54.

51 Id. 54-55.

52 Id. 59.

53 Id. 61.

54 Id. 66.

55 Victoria v. The Commonwealth (1957) 99 C.L.R. 575, 614 (though, with respect to Menzies J., the remarks of Dixon C.J. appear limited to the use of the taxation power) .

56 (1962) 107 C.L.R. 46, 67.

57 Infra nn. 65-70.

58 E.g. Australian Security Intelligence Organization Act 1979 (Cth), s. 8(2).

59 Text accompanying nn. 31-32 supra.

60 Cf. Zines, “Sir Owen Dixon's Theory of Federalism” (1965) 1 F.L.Rev. 221.Note the judgments of Barwick C.J. and Mason J. in recent cases concerning s. 90:M.G. Kailis (1962) Pty Ltd v. Western Australia (1974) 130 C.L.R. 245 and H.C. Sleigh Ltd v. South Australia (1977) 12 A.LR. 449.

61 Engineers' case (1920) 28 C.L.R. 129, 145 per Isaacs J.

62 Evans v. Donaldson (1909) 9 C.L.R. 140; and semble, a majority in R. v.Anderson; ex parte I pee-Air Pty Ltd (1965) 113 C.L.R. 177.

63 (1931) 46 C.L.R. 131.

64 Id. 145.

65 R. v. Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 C.L.R. 177.

66 Id. 200.

67 Id. 204.

68 Id. 206.

69 Id. 192.

70 Id. 201-202; cf. Bosnjak's Bus Service Pty Ltd v. Commissioner for Motor Transport (1970) 92 W.N. (N.S.W.) 1003, 1016.

71 (1977) 139 C.L.R. 54.

72 Id. 87.

73 Id. 61-62.

74 Id. 62.

75 Id. 115-116.

76 Id. 82.

77 (1965) 113 C.L.R. 177.

78 (1977) 137 C.L.R. 396, 403.

79 (1931) 46 C.L.R. 131.

80 (1965) 113 C.L.R. 177.

81 E,g. ex parte Duncan (1904) 4 S.R. (N.S.W.) 217; Evans v. Donaldson (1909) 9 C.L.R. 140.

82 This is the view of Whitmore and Aronson, Review of Administrative Action (1979) 11 and of Sykes, Lanham and Tracey, General Principles of Administrative Law (1979) 5.

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

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

85 (1965) 113 C.L.R. 177.

86 Green v.Daniels (1977) 13 A.L.R. 1.

87 British Oxygen Co. Ltd v. Minister of Technology [1971] A.C. 610, 625, 631.

88 Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] A.C. 1014, 1065 per Lord Diplock.

89 Kerr Committee, Report op. cit. para. 266.

90 Id. para. 344.

91 s. 28.

92 s. 13.

93 Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978 (1979) Parliamentary Paper No. 272/1979.

94 The jurisdiction of the Administrative Appeals Tribunal varies from time to time; some additions are made by way of amendment of the Administrative Appeals Tribunal Act and subordinate legislation made thereunder; others are made by way of amendment of the enactment establishing the particular authority. Appeals from decisions ef statutory authorities such as the Secretary of . the Department of Transport, the Commissioner for Superannuation, the Australian Broadcasting Tribunal, and the Repatriation Review Tribunal are only some of the appeals which lie. A complete list of appeals is given annually in the Report of the Administrative Review Council, and is also published from time to time in Pearce (ed.), The Australian Administrative Law Service.

95 Ombudsman Act 1976 (Cth), ss. 3(1), 5.

96 Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 3(1), includes within the definition of decisions to which the Act applies all decisions “of an administrative character made, or proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment ... “.

97 The definition of “prescribed agency” in cl.3 of the Bill would appear to include most statutory authorities.

98 Rae Committee, First Report op. cit. Appendix 6.

99 Id. ch. 6.

page 378 note 1 Joint Committee on Publications, Annual Reports of Commonwealth Departments and Statutory Authorities (Seventh Special Report) (1979) Parliamentary Paper No. 211/1979.

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

3 S.14B.

4 Senate, Standing Order 96; House of Representatives, Standing Order 142.

5 Odgers, Australian Senate Practice (5th ed. 1976) 218-220.

6 Kerr Committee, Report op. cit. para. 19.

7 Law Reform Commission Act 1973 (Cth), s. 6(1).

8 Royal Commission on the Monetary and Banking Systems, Report (1937) 206.

9 Supra n. 8, p. 355.

10 Campbell, , “Ministers, Public Servants, and The Executive Branch” in Evans (ed.), Labor and the Constitution 1972-1975 (1977) 141-142Google Scholar. The Law Reform Commission of Canada reached a similar conclusion and has recommended that the “policy mandate or guidelines should, in principle, be stated clearly in its enabling Act”: Working Paper 25, op. cit. 62.

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

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

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

14 Supra n. 35.

15 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 F.L.R 469, 473; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 A.L.D. 33, 39.

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

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

18 Ombudsman Act 1976 (Cth), s. 5(1).

19 Id. ss. 8-14. See Katz, “The Commonwealth Ombudsman’s Power to Compel Testimonial Activity for the Purpose of an Investigation” supra p. 321.

20 Id. s.15.

21 Id. s.17.