Measuring Accountability in Public Governance Regimes book forum - Author’s reply
Dr Ellen Rock replies to reflections from Professor John McMillan and Dr Anna Olijnyk on her book Measuring Accountability in Public Governance Regimes. To see all posts, please click here.
Ellen Rock
12.12.2022
Almost a decade ago when I first began the research project which would ultimately become Measuring Accountability, government accountability appeared (to me at least) to be a topic that was more interesting to academics than the general public. Public and media attention tended to focus on individual examples of government wrongdoing and maladministration rather than on the broader structural setting in which they took place. I was both lucky and unlucky to have timed the publication of this book at the end of 2020 just as a series of high profile scandals and instances of questionable administration emerged which have since shone a bright spotlight on this topic: Robodebt, Sports Rorts, Car Park Rorts, Watergate, hotel quarantine bungles, Morrison’s Multiple Ministries and a vast number of others. I was unlucky because these examples would have provided useful fodder for the book, but lucky because they now underscore many of the points I have attempted to make. Attention has shifted from critique of individual scandals to a continuing public conversation about accountability and how best we can achieve it.
I am very grateful to Dr Anna Olijnyk and Emeritus Professor John McMillan for taking the time to engage so thoughtfully with the arguments I have made in the book, and for their insightful contributions to this book forum. In my reply, I would like to reflect on their comments by reference to perhaps the most high-profile accountability development that has post-dated the publication of this book: the establishment of a National Anti-Corruption Commission. This development has of course been on the agenda for some time, allowing ample opportunity to design an optimal model. The Labor government introduced its long-awaited bill into Parliament in September and has since been passed in an amended form by both Houses. It is clearly too early to predict how effective the ultimate Commission will be as an accountability mechanism. However, informed by the arguments I have made in Measuring Accountability, two key points bear consideration.
1 Identifying an accountability benchmark
First, in order to evaluate the Commission’s substantive contributions to government accountability, our first step should be to articulate what concrete accountability goals we would like it to achieve. The amorphous call for ‘accountability’ might mean different things in different contexts, such as the pursuit of transparency, policing the boundaries of public power, correcting the outcomes flowing from an unlawful exercise of power, punishing abuse of power, or initiating systemic reform. As Professor McMillan has noted, a demand for accountability could mean many other things too, such as the pursuit of fairness or efficiency. Put simply, we can only begin to evaluate whether the Commission is capable of achieving accountability if we are explicit about what that goal looks like in a practical sense.
There are a number of perspectives that we might take about the Commission’s accountability role. Perhaps its most important accountability goal, in my view, would be to facilitate transparency in government operations. On this view, accountability is served by shining a light on instances of maladministration and abuse of public power. This is important because when the government is open about its failings (and plans to do better) this builds public trust, whereas secrecy and governing behind closed doors undermine public trust and pose a potential threat to the legitimacy of government. If we subscribe to this vision of accountability, we would welcome mechanisms capable of uncovering and publicising maladministration. Conversely, we would have concerns about serious limitations on those mechanisms’ jurisdiction or powers (e.g. weak powers to compel production of information, or too many areas of carve-out or immunity).
If we were to take transparency as our core accountability objective in this context, how would the Commission rate in its current form? There are some very good signs on this front, due to the Commission’s broad investigative remit. Unlike under the previous Coalition model, there is no ‘weaker’ form of investigative powers for certain classes of officials such as politicians (cl 10), and outsourcing is also addressed (cll 10, 12(1)(f)). The definition of corruption is suitably broad. While the definition has been narrowed to remove the originally comprehensive ‘corruption of any other kind’ (original cl 8(1)(e)), it still captures conduct which could indirectly affect the honest or impartial exercise of public functions and breaches of public trust (cl 8(1)), including past conduct (cl 8(4)). It is also promising to see that the Commission will not be stunted in its ability to commence investigations; it has an own-motion investigative function (cl 40(2)) as well as comprehensive powers to access documents (cl 58), search premises (cl 117), and examine witnesses (cl 63). Taken together, this puts the Commission in a good position to uncover corruption.
But if transparency is our accountability objective, we would likely demand more than a mechanism that can discover corruption; the public would also need to be made aware of it. There are two potential limitations on this front in the current bill. First, as many have criticised, the Commission may only hold public hearings in ‘exceptional circumstances’ (cl 73), meaning that the public will not be aware of the nature or content of most investigations. Secondly, this limitation is compounded by the Commission’s reporting functions. While the Commission is required to prepare reports following all investigations (cl 149), only those (minority of) cases involving public hearings are tabled in Parliament (cl 155), and the Commissioner may publish other reports only if satisfied it is in the public interest to do so (cl 156). It is possible that the Commissioner may interpret this reporting power broadly so as to provide a degree of transparency about its operations, or may utilise other disclosure powers to create public awareness (cll 48 and 230). However, the optics of this reporting regime are not ideal from a transparency perspective; the general public may lack trust in the transparency delivered by a Commission that investigates in secret and is not obliged to publicly report on its activities after the fact.
To summarise, if we take transparency as our accountability benchmark, the Commission’s curtailed powers to publicise corruption would likely not meet all of our accountability expectations. This is an example of a potential accountability deficit in the terms I have described in Measuring Accountability, being a potential shortfall when measuring a given mechanism against an explicitly identified benchmark (i.e. ensuring the public is made aware of instances of corruption).
2 Mapping the accountability system
This leads, however, to the second key argument set out in Measuring Accountability, which is that identifying a potential area of accountability deficit can only ever be a starting point in our analysis. This is because a deficit is only truly a deficit if it is not made up for elsewhere, for example by another mechanism that is capable of satisfying those missing parts. A very simple example of this point appears if we look at a different accountability objective: punishment of abuse of power. The Commission is clearly not in a strong position to achieve punishment of corrupt conduct. It has no powers of punishment, and the restriction on public hearings in most cases would prevent the Commission contributing a ‘softer’ form of punishment through a public shaming process. However, an immediate response to this critique is that criminal prosecution and sentencing procedures within the judicial system already deliver adequately on this objective, and are probably a much more appropriate vehicle for that purpose given their institutional expertise and procedural protections. Put simply, an individual mechanism need not (and likely, cannot) be ‘all things to all people’, and we can be more comfortable with that reality if we view mechanisms as forming an accountability system.
Returning to our concerns about transparency, it is possible that some concerns about the Commission’s limited powers may be made up for by other mechanisms within our broader accountability system. The Commonwealth freedom of information regime is a clear example, and if a corruption matter proceeds to criminal prosecution, transparency may also be achieved through the open nature of the court forum. In order to really appreciate the significance of any shortfall in the Commission’s powers to publicise instances of government corruption, we would need to map out the complex web of mechanisms that facilitate government transparency and locate the potential shortfall within that web.
If we view accountability mechanisms as forming a complex system, we are also better able to appreciate the subtle effects that are achieved by varying the nature and intensity of powers and functions between those mechanisms. Some mechanisms may hold intense coercive powers (e.g. court orders) while others may have ‘weaker’ recommendatory powers (e.g. the Ombudsman). Some may exist only for a limited time and purpose (e.g. a commission of inquiry) while others may be a permanent or even irremovable fixture (e.g. the High Court’s power of judicial review for jurisdictional error).
These differences, I argue, should not be viewed as strengths and weaknesses, but instead as personality differences which can play different functions. The contributors to this forum point to clear examples of this phenomenon; if our accountability goal is to negotiate for improvement and reform, Dr Olijnyk observes that judicial review is a very ‘blunt instrument’ for that purpose. On the other hand, Professor McMillan notes that the Ombudsman’s non-threatening dialogue may be much more likely to bring the government ‘to the table’. These and other differences in personality between mechanisms can help to foster a healthy accountability ecosystem, with different mechanisms being suited to different purposes.
3 Is there an accountability deficit?
To conclude, I think it is too early to make a final judgment on whether the Commission’s shortfalls in transparency represent an accountability deficit for a number of reasons. First, it is necessary to carefully consider the Commission’s transparency functions within the broader accountability system to appreciate whether the shortfall is made up for elsewhere. Secondly, we should consider whether the limited transparency in this case might support related accountability objectives; for example, it is possible that witnesses may be more forthcoming if their evidence will not be publicised. And finally, as I have observed in the book, as important as accountability is, it is not the only important value within our system of government. At certain points it might be acceptable to compromise accountability objectives against other important values such as those of personal privacy, protection of confidential information and so on. In assessing whether the Commission fails against the transparency accountability benchmark, we should be live to all of these various complexities.
I would like to thank the editors of AUSPUBLAW for hosting this book forum and for securing such a generous panel of commentators.
Dr Ellen Rock is a Senior Lecturer in the Faculty of Law at the University of Technology Sydney.
Suggested citation: Ellen Rock, ‘Measuring Accountability in Public Governance Regimes book forum - Author’s reply’ on AUSPUBLAW (12 December 2022) <https://auspublaw.org/blog/2022/12/measuring-accountability-in-public-governance-regimes-book-forum-authors-reply>
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