When did government accountability stop making sense?

Today, government accountability is generally accepted as a desirable goal. There is a public expectation that governments and their agencies will be able to be brought to account in a variety of ways – whether that be through traditional mechanisms such as parliamentary oversight, or through the growing proliferation of specialist accountability bodies including Ombudsmen, Tribunals, and more recently in South Australia, the Independent Commissioner Against Corruption (ICAC). These new accountability bodies raise difficult questions about accountability. To whom are they accountable? In this post, Gabrielle Appleby explores the South Australian Government’s quest to achieve accountability with respect to the new ICAC and pauses to ask the question, when does accountability stop making sense?

On 2 September, the South Australian Independent Commissioner Against Corruption opened its doors. The Commissioner’s role is to receive complaints about and investigate corruption, misconduct and maladministration in the South Australian public sector. The Commissioner is assisted by the Office of Public Integrity.

The ICAC forms part of the growing integrity branch in government. Since the 1970s, there has been an increase in statutory bodies that ostensibly form part of the executive government while being charged with investigating and reviewing the conduct of the executive government. There is a question then about who watches these watchmen.

Watching over the ICAC

The ICAC’s new website declares that it is ‘both independent and accountable’ (and indeed, the maintenance of a website is one way the ICAC is intended to be accountable). The ICAC is not subject to direction in carrying out its functions (s 7(2) of the Independent Commissioner Against Corruption Act 2012). The Commissioner is directed to perform his or her functions ‘in a manner that is as open and accountable as it practicable’, while recognising that many of the investigations and examinations that the ICAC will undertake must be conducted in private.

Part 5 of the Act is entitled, ‘Accountability’. It requires the ICAC to furnish an annual report to Parliament, and every year the Attorney-General must appoint someone to conduct a review of the ICAC’s and OPI’s powers (this report is also furnished to Parliament). The ICAC must also maintain a website.

Accountability to the Attorney-General

Finally, the new ICAC is required to keep the Attorney-General informed of its operations (the Attorney-General being the Minister responsible for the administration of the ICAC legislation). Section 49(1) of the Act states that the Commissioner must keep the Attorney-General informed of the general conduct of the functions of the Commissioner and the Office of Public Integrity and provide information to the Attorney-General when requested. The provision can be understood as part of the quest to maintain accountability by harnessing the traditional responsibility of Ministers for agencies that operate within their portfolio.

Accountability to the Governor?

But there is an inherent tension between the role of the Commissioner to investigate the government and a line of reporting responsibility to the government. Section 49(2) anticipates the situation where the Commissioner is investigating a matter close to the Attorney-General. Where ‘the Commissioner is of the opinion that to provide information as requested by the Attorney-General would compromise the proper performance of the Commissioner’s functions, the Commissioner may instead provide to the Governor a detailed written explanation of the reasons for the Commissioner’s opinion’.

When the Commissioner provides information to the Attorney-General, this allows the Attorney-General to be responsible for the actions of the Commissioner, and potentially respond to questions from and furnish information to Parliament and its committees.

But what happens when the Commissioner provides his or her opinion on why the information can’t be provided to the Attorney-General, to the Governor? The Governor is not responsible to Parliament. The Governor has limited power to take action that is not on the advice of the Government’s Ministers. What is the Governor going to do with information provided by the Commissioner?

Who can help the Governor?

Perhaps one of the first things that the Governor would do would be to seek legal advice. But from whom? Presumably one of the first points of call would be the State’s Solicitor-General. But in South Australia the Solicitor-General acts as counsel for the Crown at the request of the Attorney-General (s 6 of the Solicitor-General Act 1972 (SA)). The Solicitor-General would have to seek permission from the Attorney-General to advise the Governor in these circumstances.

If the Solicitor-General did advise the Governor, there are then questions about who would have the privilege over the advice provided, and whether the Attorney-General may require the Solicitor-General to report back on what advice was provided. The New South Wales Law Reform Commission has looked at this issue and concluded that where legal advice is provided to the Crown, it ‘is the property of the Crown’ and therefore it is the government as a whole rather than any department, agency or official, that has ownership over it. The Attorney-General, as First Law Officer, has the power to make decisions about circulation and disclosure of such advice. Even if the Governor sought to access external legal advice, for example from a private barrister, similar questions about ownership and control over the advice would arise.

What could the Governor do?

Putting questions of advice to the Governor to one side, the reporting by the ICAC to the Governor raises the question of what the Governor would do with the information provided. The Governor acts on the advice of his or her Government Ministers except in those circumstances where the reserve powers can be invoked. These can be engaged when a government loses the confidence of the lower house and refuses to resign, or where the government has engaged in serious criminal or unconstitutional conduct. Any exercise of the reserve powers involves the actions of an appointed representative acting alone and often against the wishes of an elected government. It probably doesn’t need to be said that these powers must be exercised with caution.

It is extremely unlikely that the Commissioner would be furnishing the Governor with his or her opinion on why providing information to the Attorney would compromise the proper performance of the Commissioner’s functions with the intent that this could then trigger the reserve powers.

What else could the Governor do? Walter Bagehot famously described the rights of the Monarch as to be consulted, to encourage and to warn. Perhaps the provision of information to the Governor by the ICAC is intended to facilitate the Governor’s role in encouraging and warning the Government? Perhaps the Governor may warn the Premier if the circumstances warrant it? But if that is the case, the legislation should require the Commissioner to inform the Premier directly, rather than relying on the opinion of the Governor as to when the situation is serious enough to be reported to the Premier. Another option would be for the ICAC to provide the information to the Parliament, albeit it would not be able to be laid before the Houses and disclosed publicly.

Politicising the Governor

There are dangers of including the Governor as an actor in this accountability framework. By placing the Governor as the recipient of the Commissioner’s opinion, there is a risk the Governor will become politicised, making difficult decisions about when and how to use the information provided to him or her by the ICAC. The quest to ensure some form of oversight over the ICAC in the event information should not be provided to the Attorney-General is understandable. Involving the Governor in this quest is perplexing. An important part of accountability is ensuring the provision of information to those that need to know and have power to act. I can’t see how the Governor fills either of these criteria.

Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School, University of Adelaide. 

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