Horizontal accountability: the rights-protective promise and fragility of executive integrity institutions

ABSTRACT

An identifiable trend of modern Australian administrative law has been the increase of ‘integrity’ institutions. Such institutions sit notionally within the executive branch, but are provided statutorily protected independence from the government and have statutory mandates to hold the exercise of government power to account. While the general accountability function of such institutions is well known and documented, this article explains their specific role in protecting against rights-infringement by government. However, the constitutional status of these institutions means they are vulnerable in myriad ways to executive attacks on their independence and thus their ability to fulfil their accountability and rights-protective roles. Through a series of case studies, this article explores the extent and dimensions of this vulnerability and offers a number of recommendations to go some way to address it.

KEYWORDS:

• Accountability
• integrity branch
• administrative law
• Australian Human Rights Commission
• Solicitor-General
• Office of the Australian Information Commissioner; freedom of information

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. However, arguably, the statutory guarantees of tenure for most federal integrity agencies are flawed in that they still allow the government to remove an officeholder unilaterally (albeit for limited causes). Strengthened tenure would bring Parliament into the removal process as an additional check. This occurs, for instance, under the Auditor-General Act 1997 (Cth) sch 1, cl 6.

Additional information

Notes on contributors

Gabrielle Appleby

Dr Gabrielle Appleby is an Associate Professor at UNSW Law. She is the Co-Director of The Judiciary Project, Gilbert + Tobin Centre of Public Law.