Evaluating Accountability Outcomes – not easy, but worth trying - Measuring Accountability in Public Governance Regimes book forum
Professor John McMillan provides the first post in our book forum on Ellen Rock’s Measuring Accountability in Public Governance Regimes. To see all posts, please click here.
John McMillan
12.12.2022
Accountability has become an accustomed concept in our professional and public life.
We are constantly reminded in the workplace that we are accountable for how we discharge functions and the impact of our actions on others. We are equally likely to draw on accountability principles to question the professional conduct of others.
A familiar line in daily media stories is that government officials must be held accountable if allegations are substantiated about matters as diverse as Robodebt collection, flood prevention, grant allocation, COVID enforcement, workplace abuse, conflict of interest, privacy breaches, wasteful spending and misleading promises.
Those of us engaged in teaching or legal practice are likely to rely on accountability as an overarching norm to explain how public (and private) sector entities and officers should be answerable for what they do.
There are accepted themes in that common usage. A core understanding is that a person can be answerable and face censure (or worse) for failing to adhere to an expected standard of behaviour. Yet the particular standard, consequence or accountability procedure may be so different from one situation to the next that universally coherent principles will be hard to define. The agreed point, nonetheless, is that situational principles will slot into the accepted accountability matrix – who is accountable, to whom, for what, and how?
What more can be said? Dr Ellen Rock dives straight in! While explaining accountability theory both comprehensively and lucidly, she takes the discussion further by focussing valuably on two practical dimensions.
Accountability benchmarks
One is that our commitment to accountability is captured through the creation of a large (and ever-expanding) number of legal accountability mechanisms. They include dispute-resolution institutions, grievance processes, investigation tools and remedial opportunities.
The sheer range and scope of these accountability mechanisms raises the question that is at the heart of Dr Rock’s study. From one incident or situation to another, can we measure if accountability is effective and if an underlying purpose will be achieved? Can we uncover in one or another situation if there is an accountability deficit or overload?
To add rigour to that inquiry as it applies to government, Dr Rock selects five accountability goals for the measuring or benchmarking exercise:
Transparency: are there mechanisms for effectively uncovering and revealing what occurred?
Control: are there methods such as regulatory orders and sanctions to ensure the lawful exercise of government power?
Redress: are suitable remedies available to individuals who suffered loss or harm due to unlawful government action?
Desert: can potential abuse of power be controlled through punitive sanctions against public officials for intentional wrongdoing?
Deterrence: are there mechanisms (including sanctions) to discourage unsatisfactory public administration and foster positive change?
Applying the benchmarks
A second part of Dr Rock’s study deploys those hypothetical benchmarks to measure the accountability outcomes in three prominent public law scenarios. (Her analysis is far more extensive and nuanced than the following summary.)
The first scenario was the criminal prosecution and conviction of a former NSW Minister for corruption in relation to government commercial leasing, following an inquiry by the Independent Commission Against Corruption (ICAC).
Dr Rock finds that this scenario ranks positively on three benchmarks: transparency, through the ICAC public inquiry and the partially-open court proceedings; desert, as the court proceedings (but not the ICAC investigation) resulted in a conviction and imprisonment for misconduct in public office; and deterrence, as the ICAC report (but not the court proceeding) recommended revision of the parliamentary code of conduct. Dr Rock’s analysis also notes points of accountability deficit and overload in the options and outcomes for dealing with official misconduct.
The second scenario concerned three High Court actions brought by a long-term Australian resident who was detained pending deportation under the ‘bad character’ provisions of the migration law. Two judicial review actions resulted in his release from immigration detention, but a subsequent tort action for damages for false imprisonment was unsuccessful.
Dr Rock finds that the judicial review actions partly satisfied the transparency, control and redress benchmarks, as the plaintiff was released from unlawful detention following an open justice process. The tort action shone greater transparency on the act of detention, and it had the potential – unrealised in this case – to provide redress through the award of damages. None of the actions meaningfully addressed the deterrence benchmark, as there was no sign of a constructive dialogue to improve government processes.
The third scenario concerned Ombudsman complaints and compensation claims lodged by two businesses that received misleading and incorrect advice from private contractors who were administering a government non-statutory industry assistance scheme.
The compensation claims under the Scheme for Compensation for Detriment caused by Defective Administration (CCDA) failed because the CCDA did not apply to advice given by private contractors. Thus, the redress benchmark was not satisfied, though ordinarily it might yield compensation in this scenario.
An Ombudsman complaint investigation also failed the redress benchmark, as the Ombudsman report focussed on CDDA limitations, and the government agency did not accept an Ombudsman recommendation to broaden the compensation options. Otherwise, the Ombudsman’s public report (following a private investigation) partially satisfied the transparency benchmark, as well as the deterrence benchmark by initiating government dialogue on revision of the CDDA scheme.
Benefits of this framework
I will highlight three aspects of Dr Rock’s accountability benchmarking framework that are particularly appealing.
Firstly, her framework draws out that accountability is multi-dimensional. Giving undue emphasis to one particular strength or limitation of an accountability mechanism will produce a misleading impression.
As regards judicial review, for example, two features that are commonly lauded are open court proceedings and the determinative and coercive remedial powers that a court can exercise to conclusively resolve a dispute. On the other hand, a court is confined to the issues and evidence presented by the parties; the court outcomes are not directly linked to systemic problems in public administration; and judicial review remedies are not compensatory.
Orthodox criticisms of the Ombudsman role include that it is a ‘toothless tiger’ that can only make recommendations, and that investigations are conducted in private. On the other hand, as Dr Rock notes, the Ombudsman’s gaze and recommendations can roam widely, and non-threatening dialogue with a government agency will usually bring it to the table to work through issues.
An example of a novel regulatory scheme is the range of functions conferred on the Information Commissioner to regulate privacy and freedom of information matters. The Information Commissioner role combines dispute-resolution options that are usually separated. The Commissioner can make a determinative ruling on information access (subject to appeal), investigate complaints about agency decisions and conduct, initiate own motion investigations, publish administrative guidelines that agencies must consult, make vexatious applicant declarations, and provide advice, assistance and training both to agencies and the public.
Secondly, by lining up and comparing accountability mechanisms, Dr Rock emphasises that together they comprise an accountability system. No single mechanism will satisfy all accountability goals. This is well-known but not fully appreciated.
One example is the resistance (particularly from senior judicial ranks) to the suggestion that all accountability mechanisms should nowadays be viewed together as comprising a unified integrity system. The resistance to this suggestion is customarily premised on the judicial role being unique and situated within a tripartite separation of powers, and not alongside a new ‘fourth branch of government’.
The perspective that is lost through that resistance is that newer theories endeavour to explain that government accountability arrangements have evolved and become more sophisticated and tailored to a multiplicity of accountability challenges. Whereas a person may once have turned (if at all) to a court to seek justice and accountability (through transparency, control and redress), various other options are now available to achieve those objectives as well as deterrence.
Another example of the failure to appreciate fully that we have a comprehensive accountability system is that most elements of the system have emerged or evolved over the past four decades with inadequate thought given to how the elements interlink. Aggrieved individuals can forum shop, run the same dispute through multiple mechanisms, or even approach one mechanism to review the actions of another mechanism. Secrecy provisions and privacy laws may encumber the ability of various mechanisms to talk to or share information with each other.
Thirdly, Dr Rock is explicit that the principles she outlines are a tentative first step that may rest on selective or simplified assumptions. Throughout, she describes them as ‘hypothetical benchmarks’.
Numerous other accountability goals could be added to her list. A case in point is the six Benchmarks for Industry-based Customer Dispute Resolution promulgated by the Australian Government – ‘accessibility, independence, fairness, accountability, efficiency and effectiveness’. Further, as Dr Rock acknowledges, an accountability mechanism may work differently from one situation or context to another. Accountability across the public/private divide can also raise special issues.
Her framework is open and flexible to incorporating adaption and refinement.
What next?
Discussion of accountability principles is often loose and masks unstated arguments. By contrast, Dr Rock’s objective – in her words – is ‘to move beyond the generalised goal of holding the government accountable, and to articulate [the] underlying purpose in doing so’ (p 6).
Another commendable feature of her study is the quest to design a framework that assists us to measure accountability strategies and outcomes. This tends to be an overlooked dimension in public law doctrine.
Dr Rock’s study can be all the more valuable if others seek to build on it. The place to start may be in the academy. Specifically, her book provides an excellent tool for students or researchers to select a real-life scenario, as she has done, and measure it against the five hypothetical benchmarks that she has outlined.
This will tease out how well those benchmarks are understood by others and how easily they can be applied to other situations. Researchers would also be challenged to reflect on whether other accountability benchmarks are required in addition to the five that Dr Rock has selected.
In this endeavour we may take our understanding of accountability and its utility as a public law yardstick to another level.
Professor John McMillan AO is an Emeritus Professor at the Australian National University.
Suggested citation: John McMillan, ‘Evaluating Accountability Outcomes – not easy, but worth trying - Measuring Accountability in Public Governance Regimes book forum’ on AUSPUBLAW (12 December 2022) <https://auspublaw.org/blog/2022/12/evaluating-accountability-outcomes-not-easy-but-worth-trying-copy-measuring-accountability-in-public-governance-regimes-book-forum/>