Australia

   

Quality of Democracy

#14
Key Findings
With an open, transparent electoral regime, Australia’s democracy falls into the upper-middle ranks (rank 14) in international comparison. Its score on this measure has declined by 0.3 points since 2014.

While civil rights and political liberties are generally well protected, anti-terrorism laws have become progressively stronger, prompting civil and human rights concerns. Asylum seekers are processed offshore, denying them the rights accorded to citizens. Same-sex marriage has been legalized.

State and territory governments have independently improved campaign-funding disclosure requirements. Investigations indicate that both major political parties have accepted Chinese-origin donations, sparking international tensions. A court ruling barring parliamentarians from holding dual citizenships has affected numerous lawmakers, generating political instability.

Media organizations are largely independent, but the print media is highly concentrated. Anti-terrorism laws allow some restrictions on media reporting.

Anti-discrimination laws are generally strong, but surveys indicate that discrimination against women remains a problem. While corruption is generally rare, some problems at the state and local levels remain.

Electoral Processes

#5

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
The Australian Electoral Commission (AEC) is an independent statutory authority that oversees the registration of candidates and parties according to the registration provisions of Part XI of the Commonwealth Electoral Act. The AEC is accountable for the conduct of elections to a cross-party parliamentary committee, the Joint Standing Committee on Electoral Matters (JSCEM). JSCEM inquiries into and reports on any issues relating to electoral laws and practices and their administration.

There are no significant barriers to registration for any potential candidate or party. A party requires a minimum of 500 members who are on the electoral roll. A candidate for a federal election must be an Australian citizen, without dual citizenship, at least 18 years old and must not be serving a prison sentence of 12 months or more, or be an undischarged bankrupt or insolvent.

There have been no changes to the laws relating to candidacy procedures in the period under review, and the process remains open, transparent and in line with international best practices. However, in October 2017, following revelations that at least seven parliamentarians held citizenship of another country – in most cases b ancestry rather than by birth – the High Court ruled that five parliamentarians were ineligible to serve as members of Australia’s parliament. This has generated considerable political instability, particularly since the citizenship status of many other parliamentarians remains uncertain.

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
8
There are no explicit barriers restricting access to the media for any political party or candidate. The media is generally independent, and highly activist. Furthermore, the public broadcasters – the Australian Broadcasting Commission (ABC) and the Special Broadcasting Service (SBS) – are required under the Australian Broadcasting Act to provide balanced coverage. In practice, the two dominant parties attract most coverage and it is somewhat difficult for minor parties to obtain media coverage. For example, the ABC has a practice of providing free air time to each of the two main parties (Labor and the Liberal-National coalition) during the election campaign, a service not extended to other political parties. Print media is highly concentrated and biased toward the established parties. However, independent and minor-party Senators do attract considerable media attention when the governing party does not have a majority in the senate, and therefore requires their support to pass legislation. In recent decades, this has been the rule rather than the exception, and is indeed currently the situation.

In terms of advertising, there are no restrictions on expenditures by candidates or parties, although no advertising is permitted in the three days up to and including polling day. Inequity in access to the media through advertising does arguably arise, as the governing party has the capacity to run advertising campaigns that nominally serve to provide information to the public about government policies and programs, but which are in fact primarily conducted to advance the electoral interests of the governing party.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
10
No changes to voting rights occurred in the review period. Registration on the electoral roll and voting are compulsory for all Australian citizens aged 18 years and over, although compliance is somewhat less than 100%, particularly among young people. Prisoners serving terms of three years or more are not entitled to vote in federal elections until after their release, but all other adult citizens can participate in federal elections and there is no evidence that any person has been prevented from voting.

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
9
All candidates in state and federal elections are entitled to public funding, subject to obtaining at least 4% of the first preference vote. The amount to be paid is calculated by multiplying the number of votes obtained by the election-funding rate for that year. The funding rate is indexed every six months to increases in the Consumer Price Index; for the 2013 election, it was 248.8 cents per eligible vote in both houses of parliament (House of Representatives and Senate). The total election funding paid in the 2013 federal election was AUD 56.4 million. The Australian Electoral Commission (AEC) administers the distribution of funding and provides full public accounts of payments made.

For private funding, there are no limits on the value of donations, and while there are disclosure rules, they are not comprehensive and vary considerably across state governments. At the federal level, for example, candidates endorsed by a registered political party may roll their reporting of donations received into their annual party return, which, in the case of the July 2016 federal election, was not due for release until October 2017. The AEC does, however, rigorously monitor and enforce the disclosure requirements in place. Several of the state and territory governments have in recent years legislated to improve disclosure requirements for private funding and in some cases limit donations. While other states, such as Victoria, introduced a non-binding Code of Conduct in October 2011.

In June 2017, an investigation by journalists into Chinese attempts to influence Australian political parties revealed that both major political parties accepted donations believed to have originated with the Chinese government. The prime minister subsequently ordered an inquiry into espionage and foreign interference laws. The conflict between Australia and China escalated in late 2017. The Australian government accused China of undue interference, while Chinese commentators have labeled Australia an agent of the United States. The tensions might continue in the medium term.

Citations:
Joint Standing Committee on Electoral Matters, Inquiry into the funding of political parties and election campaigns, December 2011: http://www.aph.gov.au/Parliamentary _Business/Committees/House_of_Representatives_Committees?url=em/politi cal%20funding/index.htm

Brenton Holmes ‘Political financing: regimes and reforms in Australian states and territories,’ Parliamentary Library, 19 March 2012: http://www.aph.gov.au/About_Parliam ent/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/PoliticalFinancing

http://www.lo c.gov/law/help/campaign-finance/australia.php

http://www.aec.gov.au /About_AEC/Publications/Reports_On_Federal_Electoral_Events/2010/disclosure.htm#thresholds

http://www. aec.gov.au/About_AEC/Publications/Reports_On_Federal_Electoral_Events/ 2010/fad-report.pdf

http://www.abc.net.au/news/2016-08-22/foreign-donations-could-skew-australias-democracy-politicans/7775060

http://www.abc.net.au/news/2017-06-06/turnbull-orders-inquiry-following-revelation-asio-warned-parties/8592308

http://www.smh.com.au/world/china-criticism-grows-over-australian-foreign-interference-stance-20171211-h02in1.html

Australien legt sich mit China an. FAZ, 12.Dezember 2017, S. 18.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
Citizens do not have the legal right to propose and take binding decisions on matters of importance to them at any level of government. Since the establishment of the Federation in 1901, citizens have voted on specific issues 44 times, with eight of those succeeding, but they cannot initiate the process. Nevertheless, some of these referendums have covered important issues, such as the 1967 referendum on the status of indigenous people in Australian society. However, no referendum has succeeded since 1977. National referendums are mandatory in case of parliament-proposed changes to the constitution. Constitutional amendments have to be approved in a referendum and the result is binding. In addition, states and territories also may hold referendums on issues other than constitutional amendments.

A Citizen Initiated Referendum Bill, which would have enabled the citizens of Australia to initiate legislation for the holding of a referendum to alter the constitution, was presented and read in the senate in 2013, but did not proceed and lapsed at the end of the 43rd Parliament in September 2013.

Citations:
http://www.aph.gov.au/~/media/05%20 About%20Parliament/54%20Parliamenta ry%20Depts/544%20Parliamentary%20Library/Handbook/43rd_PH_Part5.ashx
Williams, George/Hume, David, 2012, People Power: The History and Future of the Referendum in Australia

Citizen Initiated Referendum Bill 2013, No.
, 2013 (Senator Madigan), A Bill for an act to enable the citizens of Australia to initiate legislation for the holding of a referendum in relation to altering the Constitution, and for related purposes, http://www.restoreaustralia.org.au/petition-ups/CIR%20Bill.pdf

Australian Election Commission, Referendum dates and results, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm

Access to Information

#26

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
Media organizations – both public and private – are largely independent from government, although the main public broadcaster is accountable to a board of directors appointed by the government. Censorship is mainly restricted to material of a violent or sexual nature. There are, however, several potentially significant threats to media independence. For one, regulation of ownership of media is politicized and some owners are regarded as favorable to the incumbent government. Also, the Anti-Terrorism Act 2005 allows for control orders to restrict freedom of speech by individuals and the freedom of the media to publish their views. The National Security Legislation Amendment Bill passed in 2014 also restricts the ability of journalists to report on secret intelligence operations, with up to 10 years in jail imposed for exposing errors made by security agencies. Journalists argue that if whistleblowers are punished, journalism will be hurt. The implications of these two pieces of legislation for media freedom have not yet been tested in court.

Citations:
http://www.theaustralian.com.au/business/media/call-to-scrap-security-laws-that-could-jail-journos/news-story/0b7b4d888751c0b11dc093ccb11c07bd

http://www.pressfreedom.org.au/press-media-alliance-freedom-report/introduction/foreword

https://freedomhouse.org/report/freedom-press/2015/australia

http://www.abc.net.au/news/2017-12-14/china-backlash-australia-questions-of-political-interference/9258462

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
5
Australia has a very high degree of concentration of media ownership, with the ownership of national and state newspapers being divided mainly between two companies: Rupert Murdoch’s News Corporation and the John Fairfax Group. The concentration of newspaper ownership has resulted in a low level of diversity in reporting and editorial positions. There is slightly more diversity in broadcast media, with the government funding two bodies, the Australian Broadcasting Corporation and the Special Broadcasting Service, to provide a balance to the main commercial outlets. There are also three main commercial companies, none of which is politically aligned.

It is likely that the concentration of media ownership will increase following the passing of amendments to the Broadcasting Services Act 1992. The amendments repeal two regulations that currently prevent any single person from controlling commercial television licenses that broadcast to more than 75% of the federal population or controlling more than two regulated forms of media (i.e., commercial radio, commercial TV or associated newspapers) in one commercial radio license area.

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
7
Since 1982, access to government information has been largely regulated by the Freedom of Information Act (FOI Act). Under this act, applications for information from the government must be made in writing and agencies must respond within 30 days.

The original FOI Act contained a considerable number of exemptions, including for cabinet documents; internal working documents; documents affecting national security, international relations or relations with states; documents affecting enforcement of law and protection of public safety; documents affecting Commonwealth financial or property interests; documents relating to business affairs or research; and documents affecting the national economy.

Ministers were also granted considerable discretion to issue “conclusive certificates” stating that information was exempt under the act’s provisions that protect deliberative process documents, national security and defense, cabinet documents, and documents related to Commonwealth/state relations. These certificates could not be reviewed during any appeal.

Compliance with the FOI Act was heavily criticized by many people in the past, and the Labor government elected in 2007 passed several pieces of legislation and new regulations that sought to improve community access to government information. This included: the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009; the Freedom of Information (Fees and Charges) Amendment Regulations 2010; the Australian Information Commissioner Act 2010; and the Freedom of Information Amendment (Reform) Act 2010, under which requirements to publish information were increased as of 1 May 2011.

In May 2014, the coalition government announced the abolition of the Office of the Australian Information Commissioner, although in principle its main functions will continue to be carried out by other agencies.

Citations:
Attorney General’s Department web site describing the 2009 and 2010 Freedom of Information reforms: http://www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformati onreforms.aspx

http://www.oaic.gov.au/images/documents/freedom-of-information/app lying-the-foi-act/foi-guidelines/pa rt2_Scope_application_FOI_Act_v1.3.pdf

Statement by the Australian Information Commissioner, Freedom of Information Commissioner and Privacy Commissioner on the government’s decision to abolish the Office of the Australian Information Commissioner: http://www.oaic.gov.au/news-and-events/statements/australian-governments-budget-decision-to-disband-oaic/australian-government-s-budget-decision-to-disband-oaic

Civil Rights and Political Liberties

#19

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
7
Australia is the only major established democracy which does not have a bill of rights, but civil rights are protected through a significant body of legislation and by the constitution, which contains certain implied rights which are subject to interpretation by the High Court.

While Australia’s record of protecting human rights is internationally regarded as strong, criticism continues to be voiced regarding treatment of the indigenous population and the respect accorded to asylum-seekers’ civil rights. Even the Labor Party supports the policy of offshore processing of asylum-seekers, which is of course denying them rights enjoyed by Australian citizens.

Concerns have also been raised about counter-terrorism legislation. The Anti-Terrorism Act 2005 includes a variety of individual powers, including detention for up to 14 days, and restrictions on the movement, activities and contacts of persons subject to “control orders,” whether or not those persons have been accused or convicted of any offense. The coalition government has implemented four further tranches of legislation since October 2014. These include the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, which requires telecommunications service providers to retain and secure telecommunications metadata for two years. Twenty-two agencies, including the Australian Security Intelligence Organization (ASIO), state police forces, the Australian Crime Commission and the Australian Taxation Office are able to view the data without a warrant. The act is opposed by a wide range of groups, including human rights organizations and civil liberties groups, on the basis that it represents an excessive encroachment on Australians’ privacy. Most recently, the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 grants the government explicit powers to revoke Australian citizenship from dual citizens convicted of engaging in terrorist-related activities. The bill has also been criticized for being unconstitutional and for allowing possible retrospective application.

In late 2017, the government proposed further changes, including new commonwealth criminal offenses for people in possession of instructional terrorist material and for people who engage in terrorism hoaxes; creation of a national facial biometric matching capability; and increasing the role of the military in responding to terrorism incidents.

Citations:
http://www.amnesty.org.au/news/comments/36221/

Leonard, P (February–March 2015). “The metadata retention debate rages on” Internet Law Bulletin: http://www.gtlaw.com.au/wp-content/uploads/The-Metadata-Retention-Debate-rages-on.pdf

https://theconversation.com/improved-citizenship-bill-still-invites-criticism-and-high-court-challenges-47153

http://www.smh.com.au/federal-politics/political-news/a-new-low-labor-slams-turnbull-government-plans-to-put-asylum-seekers-on-the-street-20170827-gy4z9b.html

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
8
Political liberty is strongly protected by the courts, but is not unfettered. As in other Western countries, anti-terrorist legislation has raised a major challenge to political liberties. The Anti-Terrorism Act 2005 makes any act of sedition illegal, such as urging the overthrow of the government by violence or force, and outlaws any organization that advocates the use of violence or force for that end. One of the main criticisms of the legislation is that it lacks sufficient judicial oversight. Some also regard the design and administration of defamation laws as hampering political liberties, as they in practice act to protect governments, companies and powerful people from scrutiny.

Like many other OECD countries, Australia has seen a rise in anti-Islamic political parties, including Pauline Hanson’s One Nation party, which secured four out of 76 senate seats in the July 2016 federal election.

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
7
Australia has developed a substantial body of anti-discrimination legislation, covering sex, race, ethnicity, marital status, pregnancy and disability. The body charged with overseeing this legislation, the Australian Human Rights Commission, is a statutory authority. After completion of a National Human Rights Consultation, Gillard’s Labor government moved toward replacing existing anti-discrimination legislation with a single integrated act that additionally incorporated prohibitions on discrimination on the basis of sexual orientation. Despite a reduction in sexual discrimination over recent decades, a 2016 survey of young Australians indicated that discrimination against women remains a problem.

No changes to legislation were ultimately made during the Gillard government’s term in office, and the new coalition government has shown no interest in implementing the changes. Indeed, in November 2013, the attorney general announced a plan to amend part of Australia’s racial-discrimination laws by repealing section 18C of the Racial Discrimination Act 1975, which makes it unlawful for someone to perform an act that is reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. In response to widespread opposition to the proposal, it was abandoned in August 2014. Several members of the coalition government nonetheless continue to advocate for its repeal.

Even though outside of the review period, it is important to note that Australia has finally joined other OECD countries that permit same-sex marriage. Following a broad majority in a public referendum, Australian parliament passed a bill on 7 December 2017 that allows same-sex marriage.

Citations:
https://www.missionaustralia.com.au/what-we-do/research-evaluation/youth-survey

http://www.smh.com.au/business/workplace-relations/gender-discrimination-starts-young-mission-australia-2016-youth-survey-20161202-gt2snt.html

http://abcnews.go.com/International/australian-parliament-approves-sex-marriage-lengthy-national-debate/story?id=51637900

Rule of Law

#7

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
9
There is strong judicial oversight of executive decisions. Judicial oversight occurs through a well-developed system of administrative courts, and through the High Court. That said, jurisdictional uncertainty between the federal and state governments continues to be an issue. Two recent cases highlighting this uncertainty are a 2013 High Court challenge of the constitutionality of the Minerals Resources Rent Tax (MRRT) introduced by the federal government in 2012 and a 2014 High Court challenge of the constitutionality of federal funding of school chaplains. The High Court ruled the MRRT constitutional, but ruled the chaplaincy program unconstitutional.

Though a relatively minor development, in 2016, the Attorney General issued a direction blocking the Solicitor-General, who advises the government on legal questions, from providing legal advice to anyone in the government without the permission of the Attorney General. This has compromised the independence of the Solicitor-General and contributed to resignation of the Solicitor-General in October 2016.

Citations:
Michael Crommelin, ‘The MRRT Survives, For Now: Fortescue Metals Group Ltd v Commonwealth’ on Opinions on High (16 September 2013)

Gabrielle Appleby ‘Commonwealth left scrambling by school chaplaincy decision’ The Conversation, 19 June 2014: https://theconversation.com/commonwealth-left-scrambling-by-school-chaplaincy-decision-27935

http://www.abc.net.au/news/2016-10-24/justin-gleeson-resigns-as-solicitor-general/7960632

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
10
There has been no significant change during the period under review. While the scope for judicial review of government actions is very much affected by legislation allowing for or denying such review, it is nonetheless the case that government and administrative decisions are frequently reviewed by courts. There is a strong tradition of independent judicial review of executive decisions. This tradition stems to a significant extent from the evolution of administrative law, which has spawned an administrative courts process through which complainants may seek a review of executive action. The executive branch generally has very little power to remove judges, which further contributes to the independence of the judiciary. Furthermore, there are many instances in which courts have ruled against the executive. The executive has in the past generally accepted the decisions of the courts or appealed to a higher court, rather than attempting to circumvent the decision.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
6
The High Court is the final court of appeal for all federal and state courts. While the constitution lays out various rules for the positions of High Court justices, such as tenure and retirement, there are no guidelines for their appointment – apart from them being appointed by the head of state, the Governor-General. Prior to 1979, the appointment of High Court justices was largely a matter for the federal government, with little or no consultation with the states and territories. The High Court Act 1979 introduced the requirement for consultation between the chief law officers in the states, the attorneys general and the federal Attorney General. While the system is still not transparent, it does appear that there are opportunities for the states to nominate candidates for a vacant position. However, there has never been a High Court judge from either South Australia or Tasmania, which has been a long-standing bone of contention. Considering the importance of the High Court for the settlement of Commonwealth-state relations, there has been concern that judges with a strong federal perspective are regularly being preferred. From the perspective of the public, the appointment process is secret and the public is rarely consulted when a vacancy occurs. In recent years, a debate has emerged whether diversity, as well as representativeness, should play a role in selecting judges.

Citations:
http://www.smh.com.au/federal-politics/political-opinion/easier-to-pick-a-melbourne-cup-winner-than-next-high-court-judge-20120312-1uwds.html

http://www.hcourt.gov.au/justices/about-the-justices

https://www.ruleoflaw.org.au/australia-high-court-appointment/

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
8
Corruption prevention is reasonably effective. Federal and state governments have established a variety of bodies to investigate corruption by politicians and public officials. Many of these bodies have the powers of Royal Commissions, which means that they can summon witnesses to testify.

At the federal level, these bodies include the Australian Crime Commission, charged with combating organized crime and public corruption, the Australian Securities and Investments Commission, the main corporate regulator and the Australian National Audit Office.

Nonetheless, significant potential for corruption persists, particularly at the state and territory level. There have been isolated cases of misconduct in anti-corruption commissions. Allegations of corruption in the granting of mining leases have sparked public outcry, and a New South Wales Independent Commission Against Corruption inquiry into corruption in the granting of such leases was in progress throughout the review period. This inquiry has led to the resignations of a number of members of the New South Wales parliament from both the Labor and Liberal parties.

Questions of propriety are also occasionally raised with respect to the awarding of government contracts. Tender processes are not always open, and “commercial-in-confidence” is often cited as the reason for non-disclosure of contracts with private-sector firms, raising concerns of favorable treatment extended to friends or favored constituents. Questions of inappropriate personal gain have also been raised when ministers leave parliament to immediately take up positions in companies they had been responsible for regulating.

However, Australia has been reluctant to address cross-border corruption. A notable exception is the recent action of Australian federal police, which in October 2014 commenced to seize assets of allegedly corrupt Chinese officials. This joint operation with Chinese authorities has been a novelty.

Members of the senate and the House of Representatives are required to report on their financial interests within 28 days of taking the oath of office. These registers were adopted by resolution of the House of Representatives on 8 October 1984 and the senate on 17 March 1994. However, there have been instances of failure to comply with this requirement, usually with no consequences for the member concerned. Ministers are further subject to a Ministerial Code of Conduct, introduced in 1996, which articulates guidelines for ministerial conduct. However, this code has no legal standing, and is therefore unenforceable.

Citations:
http://www.icac.nsw.gov.au/investigations/current-investigations

http://www.theguardian.com/australia-news/2014/oct/23/australia-slow-to-tackle-international-corruption-with-just-one-case-in-court

http://www.transparency.org/cpi2015

http://www.abc.net.au/news/2015-06-17/systemic-corruption-inside-ccc-watchdog-finds/6554220
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