TOPIC 3.3: How do we ensure citizens have a right of redress?

Structures which ensure the right of redress.

Law and justice are significant planks in a fair and just society, and public servants administer laws and regulations so there needs to be a process whereby the citizenry feel they can redress any decisions made by the public sector, which might adversely affect them, and perhaps do it in such a manner so as not to bog down the Court system.

Administrative Review processes are available within all jurisdictions and come in many forms. This is the theme of Topic 3 below.

Political accountability attained through Ministerial and collective responsibility, the sovereignty of the parliament and the power of the ballot box, is one form of government accountability. Another type of accountability is required to ensure that the bureaucrats are accountable for the decisions they make while implementing the law (and Regulations). Institutions have been established over time to provide a process of administrative review, where decisions can be appealed and examined for fairness, correctness, and/or legality (for example), and public officials’ behaviour can be scrutinised for ethical and or legal breaches.

A number of these bodies are discussed below.

The Ombudsman

The word ombudsman is Swedish for “Agent” or “Attorney” and will take up a citizen’s complaint against the government and investigate the matter. If the complaint is deemed to be justified, a report goes to the citizen and to the agency, but the office cannot override the decision nor compel the agency to correct the decision. A non-complying agency can be reported to the Prime Minister, a Minister or the Parliament. Each state has its own ombudsman.

Administrative Appeals Tribunal (AAT)

The AAT acts in an executive rather than judicial capacity to hear matters over a range of administrative areas such as medical, taxation, veterans. The AAT is able to: reassess the decision as if it was the original decision-maker or Department; is required to give reasons for the decision; but, cannot award costs. Most states have a near equivalent of this body.

As government becomes more complex and citizens become more litigant, the challenges faced by administrative review tribunals become more complex.

Judicial Review

This Act enables the Federal Court to review Commonwealth Government decisions on matters of common law remedies to see whether a decision meets a test of:

• Natural justice or procedural fairness
• Nature of power – ‘ultra vires’ (beyond limit)
• Acted reasonably – takes into account only relevant matters
• Error of law
• Fraud

Independent Crime and Corruption Commissions

Of concern to society is the possibility that public servants, politicians or those working directly with government might be corrupt and/or engaging in criminal activities. For example, a 2023 APSC report found that in the previous six years well over 1000 public servants had acted corruptly, dishonestly or without integrity (Belot, 2023).^[1] For accountability purposes, there need to be both proactive and reactive investigations of public life.

One very early example of an independent anti-corruption body is the Crime and Misconduct Commission that was introduced in Queensland following the 1987-89 Fitzgerald Commission findings of political and systemic corruption involving the police force. Ongoing public debate in Queensland on what became the Crime and Corruption Commission (CCC) saw the state government call a new inquiry in 2022, once again headed by Tony Fitzgerald, to review the CCC and whistleblower protection laws (Crime and Corruption Commission, 2019).^[2]

Equivalent bodies have evolved across the States and Territories. For example, NSW has ICAC (the Independent Commission Against Corruption); WA has its Crime and Corruption Commission; Victoria has the Independent Broad-based Anti-Corruption Commission and Tasmania has its Integrity Commission (Bodyhady, 2019).^[3]

Because of Australia’s federal structure and the different legislation across Australia there are varying designs and structures, as well as differing powers to compel witnesses, search government premises and undertake surveillance. Further issues concern whether Commissions hold hearings in private or public and whether they can make recommendations only regarding legal matters or whether they can include ethical matters too. From time to time, various state governments have altered their Commissions powers and scope to either enhance or limit their effectiveness and can always reduce budgets if they are unhappy with the body.

While anti-corruption bodies are long-established at the state level, it was only in 2023 that a federal body, the National Anti-Corruption Commission (NACC), was established (NACC, n.d.).^[4]  While the model proposed by the previous Coalition government was widely derided, the model put forward by the Labor Government was praised by advocates, “the NACC is equipped with strong powers to carry out their task of investigating corruption in the public sector” (Tsikas, 2022).^[5]  The model covers federal politicians, their staff, public servants, contractors and third parties who seek to corruptly influence federal public officials.  The NACC is protected from political interference in a range of ways including self-initiated investigations, tenured appointments and decisions taken entirely independently.  Controversially, hearings will only be public in exceptional circumstances.

Australian National Audit Office (ANAO)

The ANAO is an arms-length public sector agency reporting directly to parliament.  It provides financial audits, performance audits and assurance reviews of Commonwealth public sector agencies and statutory bodies (ANAO, 2024).^[6] The ANAO initiates its own investigations and once its report is tabled in parliament, the lower house’s Public Accounts Committee (one of the most important committees in any Westminster parliament) can use it to conduct further investigations including holding hearings to question key people (Jacobs, et al, 2007).^[7]  All Australian parliaments have a similar audit office and a Public Accounts Committee.

Most of the ANAO’s work doesn’t create headlines in the mainstream media, but a couple of recent examples illustrate the value of the ANAO’s work (and, unusually, made the ANAO regular front page news!).  The so-called ‘Sports Rorts’ and ‘Car Park Rorts’ scandals in 2020 and 2021 began with investigations and reports from the ANAO (Ng, 2021).^[8]  The fireworks around these investigations contrast with the duller and far more technical findings of most of the audits.  Whether high- or low-profile, the many audits the ANAO carries out each year are an important aspect of ongoing public accountability.