Case in Point: Accountability in the Victorian State Parliament

This an article summarising the findings from my Masters research, originally published in the Australian Ethics Newsletter in early 2013 (hence the unusually formal tone). If you’re interested, you can find the entire behemoth of a document via this link (don’t panic, there’s an executive summary right up front).

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Accountability is the core of democracy. The commitment that power resides in the people, granted to government for use in the interests of those people, is what sets democracy ahead of all other political systems. But unless citizens can hold governments and MPs responsible for the use of the power invested in them, democracy degrades to a choice of who will rule us term-by-term.

In order to further research the association between politics and accountability, I conducted a comprehensive review of accountability mechanisms within the State Parliament of Victoria. This research investigated formal accountability mechanisms built into the structure of parliament and informal mechanisms designed to hold MPs accountable separate of formal channels. Distinction was also made between ‘positive’ and ‘negative’ accountability; mechanisms that encourage good behaviour versus those that police and address failures.

The results of this review were disturbing on a number of levels.

Research hit a hurdle early on when it turned out that a comprehensive ethical theory of accountability did not yet exist. Such a theory was necessary to judge the success or failure of each accountability mechanisms, I drew on relevant literature and examples to write one. A copy of this theory is available for review and comment by anyone interested.

Drawing on this theory, a comprehensive review of the Victorian Parliament identified 19 formal and 6 major informal accountability mechanisms. None of these, either singularly or in combination, were sufficient in satisfying an acceptable level of accountability between the Victorian Parliament and the citizens who grant them their power.

The Victorian Parliament’s formal accountability mechanisms revolve around three core systems:

  1. Elections – the opportunity for citizens to vote out (fire) MPs they feel do not act in their interests.
  2. The Ministerial Code of Conduct and Register of Interests – requiring individual MPs to uphold certain standards and preventing them from voting in matters where they have a conflict of interest.
  3. The new Independent Broad-based Anti-corruption Commission (IBAC) – empowered to investigate and prosecute corruption in the Victorian public service, including MPs.

While these mechanisms are well intentioned and do hold Parliament to certain rigorous standards, issues of scale and significant loopholes mean they are rarely effective in practice and can easily be bypassed by unscrupulous MPs.

While elections certainly hold MPs and political parties to account with significant consequences, the prevalence of political parties (which are neither acknowledged nor accounted for in parliamentary mechanisms) means that while citizens may punish those they feel don’t represent their interests, they have no way of ensuring their replacement is any better. The nature of elections also fails to provide any way for misuses of power to be corrected during an MP’s term or regarding specific issues, forcing citizens to lump all their concerns into one single decision every four years.

The Ministerial Code of Conduct is an excellent idea that suffers from being both extremely vague and extremely brief – only 2 pages long and failing to define fundamental concepts such as “private interest”, “public duty”, “discredit upon parliament”, when a conflict could “appear to exist” between public and private interests, or what qualifies as a “wilful contravention” of the Code.

The Register of Interests is perhaps the most effective positive accountability mechanism, actively preventing MPs from voting on issues in which they have a conflict of interest. The effectiveness of this mechanism is entirely compromised however by failing to recognise the influence of political parties on MPs and the fact that those political parties themselves regularly come under influence – as such, anyone seeking to influence individual MPs need only approach their political party instead. Disclosure of Political Donations legislation seeks to prevent this influence on parties, but with a minimum disclosure value of $10,000, detection is easily avoided.

While the IBAC certainly holds considerable powers of investigation and prosecution for corruption by MPs, it’s definition of corruption is plagued by loopholes. The IBAC demands the public service honestly perform their roles, avoid misuses and “knowingly or recklessly breaching public trust”, yet since there is no position description for a Member of Parliament, nor any definition of “the public trust”, nor any requirement anywhere in Parliament literature that MPs actually represent the will of their constituents, the IBAC has no capacity to ensure MP accountability unless they are literally caught with a suitcase of cash.

Other mechanisms suffer from similar problems; the Clerks of Parliament, Auditor-General and the Ombudsman lack jurisdiction for regulate anything other than administrative issues. Parliamentary committees, Question Time and the Victorian Charter of Human Rights and Responsibilities are useful in providing guidance, but can be ignored at the government’s whim, as can the limited induction and training provided to new MPs. Government Advertising Guidelines are not enforced and were found to be regularly abused by a Parliamentary inquiry, and the Election Advertising Guidelines were neutered by a High Court ruling to only apply to interference in the physical act of casting a ballot.

This situation means that where citizens are dissatisfied with the use of their invested power by government or an individual MP, there is nothing they can do to correct the issue except vote against them in the next election. And where a group or individual is wronged by Parliamentary decision, they have no guaranteed way to rectify this wrong unless the government transgressed the laws they themselves write.

This constitutes nothing less than a catastrophic failure of accountability, not only breaching the duty of trust between Victorian citizens and their Parliament, but undermining the core principle of democracy itself – unless this situation is rectified, Victoria cannot legitimately describe it’s government as a democracy. Substantial reform is required.

A number of reforms can be implemented to substantially improve the accountability of the Victorian Parliament. By requiring MPs to at least consult with their constituents prior to voting on issues before parliament, MPs will be aware of what the public wants, even if they choose not to heed it. Requiring government to procure and publish objective evidence for and against proposed legislation before the Parliament, including recommended alternatives should be required, as well as a comprehensive response by government to these recommendations – citizens should further be able to launch legal action where this advice is ignored without justification.

Loopholes must be closed in all accountability mechanisms, including proper definition of terms, lowering of donation disclosure thresholds to at least $1000, a clear position description for MPs including terms for dismissal, and Government and Election Advertising Guidelines properly revised to make any and all misleading advertising a prosecutable offence. And in recognition that political parties develop and set voting lines for the majority of legislation before Parliament, they must participate in a second Register of Interests, precluding their members from voting on any issue affected by goods or services received.

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