Accountability of the executive branch of Australian Government: the courts’ oversight of officers of the Commonwealth
Creators: name: Meade, Adrian
Publisher: name: RMIT University
Year: 2024
Subjects: classificationCode: 480410
subject: Legal theory, jurisprudence and legal interpretation
classificationCode: 480701
subject: Administrative law
classificationCode: 480702
subject: Constitutional law

description: In the years since Federation, the Australian federal executive government has shifted form. In addition to Departments of State, the executive now relies upon non-statutory agencies, public-private partnerships, and private enterprises in the discharge of its responsibilities. This presents challenges to the traditional mechanisms for ensuring the accountability of the executive government to the Australian people. The executive is too diffuse for the convention of ministerial responsibility to Parliament to remain effective, and although the 'New Administrative Law' developments of the 1970s and 1980s bolstered the means by which the Australian people can challenge administrative decisions, the limitations of that project have become evident - the avenues to review are complex, and the Parliament has sought, sometimes successfully, to shield the executive from challenge. To address the accountability gaps, this thesis advocates a countermeasure: an expanded field of judicial review.
This thesis contends that a novel interpretation of s 75(v) of the Constitution - the provision that secures for the High Court its original jurisdiction over 'officers of the Commonwealth' - can help to address the accountability problems visited by contemporary, decentralised government. The argument rests on two platforms: a revision of the constitutional convention of responsible government to incorporate judicial (and not just parliamentary) oversight of the executive; and a construction of the phrase 'officers of the Commonwealth' that embraces all that exercise government functions and powers.
Adopting moderate originalism as a method of constitutional interpretation, a method that places importance on the original meanings of a constitution but recognises some devices for change, this thesis demonstrates that responsible government had various meanings at the time of Federation, stemming from the practice of the convention in Britain and the Australian colonies. These meanings were: that the Governor of a colony, as the Queen's representative, was required to seek the advice of local ministers before exercising prerogative powers; that parliaments should control the finances of the executive government; and that the executive government was collectively responsible, and ministers individually responsible, to the representative assembly. Importantly, the convention was shown to be both flexible yet clearly secured within the text of the Constitution by s  64, the provision ensuring that government ministers would be members of Parliament and therefore politically accountable for their own conduct and for the actions of the executive branch. 
Tracing the refinement of the meaning of responsible government through case law, this thesis identifies other references to responsible government in the text and structure of the Constitution. Critically, with reliance on the judgment of Gaudron J in Re Patterson (2001), the thesis points to an important development in the common law: the location of a textual reference to responsible government in s 75(v). The consequence is that responsible government, the constitutional convention once thought to promote political accountability mechanisms, now also sustains the legal accountability mechanism of judicial review.
In light of these shifts in the understanding of responsible government, the scope of High Court's jurisdiction under s 75(v) is reappraised. It is shown that the framers of the Constitution probably intended that the phrase 'officer of the Commonwealth' to have a broad meaning, one that contemplated government action by delegates and possibly even agents of the Crown, and that the purposes underpinning the drafting of s 75(v) - including, consistent with responsible government, an accountability purpose - support a wide field for judicial review. It is argued that the phrase 'officer of the Commonwealth' extends to any 'person' - natural or corporate, public or private - that exercises government functions and powers. 
The consequences of these arguments are then considered. It is shown that the expansion of judicial oversight goes some way to addressing the problems that arise from the decentralisation of the executive branch of Australian government and to ensuring that those that exercise power over the Australian citizenry remain accountable for its proper use. However, it is acknowledged that the reconstruction of s 75(v) does not alter the grounds on which matters can be brought before the High Court or the remedies that the Court might issue. Finally, it is observed that, because of the supremacy of the Constitution in the development of Australian law, the arguments advanced in this thesis should also produce a similar widening of the jurisdiction of the Federal and State courts.