Paper delivered by Justice Kyrou, President of Administrative Review Tribunal, at the Global Summit of Hellenic Lawyers, Athens, Greece, 8 July 2025

Introduction

We are all familiar with countries which had constitutions that gave the appearance of strong democratic values and extensive accountability mechanisms but, in the context of their then repressive governments, the constitutions were clearly not worth the paper upon which they were written.

With that historical perspective, I will discuss the Australian mechanisms that ensure state accountability. I will develop the following themes:

• There must be multiple mechanisms of accountability.
• Those mechanisms must apply to all key organs of the state.
• The mechanisms must be effective rather than simply read well on paper.
• There must be real checks and balances so that each organ of the state and each accountability mechanism is sufficiently independent of the others to ensure that none of them can control any of the others.

These themes are central to the topic of the conference of safeguarding democracy, the rule of law and justice. These foundational principles of good government cannot be realised if powerful organs of the state can operate in secrecy and are beyond scrutiny. Effective accountability mechanisms underpin democracy, the rule of law and the attainment of justice. They do so by ensuring that organs of the state are answerable for their actions and by promoting transparency in government decision-making. 

For accountability mechanisms to be effective and to have integrity, they themselves must be transparent and subject to checks and balances, so that the public can trust them and have confidence in them.

As is well known, Australia is a federation, with a parliament, executive and court hierarchy at the national level as well as for each of the six states and two mainland territories. My presentation will focus exclusively on the national level. I will be discussing the following:

• First, I will seek to define the key terms: ‘state’, ‘mechanisms’ and ‘accountability’.
  Secondly, I will discuss accountability under the Australian Constitution.
• Thirdly, I will expand on the accountability of the executive to the courts and merits review tribunals.
• Fourthly, I will address the importance of statutory rights to request reasons for governmental decisions and access to governmental documents, and statutory privacy rights.
• Fifthly, I will focus on three accountability mechanisms, the Commonwealth Ombudsman, the Auditor-General and the National Anti-Corruption Commission.
• Finally, I will highlight the importance of checks and balances by reference to the Administrative Review Tribunal, which is an accountability mechanism that is itself subject to multiple forms of scrutiny.

Definitions

I now turn to the meaning of the key terms of ‘state’, ‘mechanisms’ and ‘accountability’. 

Most people associate the word ‘state’ with ‘government’. However, it is important to define what is meant by ‘government’ in the context of Australia’s system of representative and responsible government.¹ 

The best place to start is our Constitution. Of the eight chapters in the Australian Constitution, the key ones for present purposes are Chapter I ‘The Parliament’, Chapter II ‘The Executive Government’ and Chapter III ‘The Judicature’. It can be inferred from the structure of the Constitution that its drafters considered that there were three key branches or organs of government, namely the parliament, the executive and the judiciary.

Accountability in the present context means that actions and decisions of every organ of the state that affect the community are capable of being subject to independent scrutiny by a formal mechanism, which has the power to require explanations and to either provide or recommend redress for unlawful or arbitrary exercises of power. A fundamental aspect of an organ of the state being accountable is that it can be requested to publicly explain or justify its actions and to take responsibility for them.

Accountability mechanisms vary in their nature and roles, and can belong to any of the three branches of government. Their essence is that they are public institutions with the power to independently examine the actions and decisions of organs of the state and to provide or recommend outcomes that are appropriate for the particular action or decision.

Accountability under the Australian Constitution

Under the Australian Constitution, the supreme organs of the state are the Commonwealth Parliament, the High Court of Australia and the Governor-General acting as the monarch’s representative. The Governor-General acts on the advice of government ministers, which is provided through meetings of the Federal Executive Council. In practice, real executive power is exercised by the Prime Minister and other ministers who form the government.

At the constitutional level, accountability is achieved through interdependencies and checks and balances. The fact that each of the three branches of government is in a distinct chapter in the Australian Constitution supports the principle of separation of powers. This principle emphasises the distinctiveness and independence of each branch of government, and underpins the accountability of each to the others. 

Insofar as this accountability is enshrined in the Australian Constitution, it is real and durable because the Constitution can only be changed by a referendum that is supported by a majority of voters nationally as well as a majority vote in a majority of states.² The requirement for a referendum to amend the Constitution is an important safeguard against arbitrary removal of constitutional checks and balances.

Accountability of the parliament to the executive and the courts

The Parliament is subject to a form accountability to the executive because it cannot pass laws unless the government (which has a majority in the House of Representatives) agrees to the passage of those laws. As an extreme step, the Governor-General can dissolve the House of Representatives³ and, in certain circumstances, both houses of parliament.⁴ An election will then follow.

The parliament is accountable to the courts. The High Court is an effective accountability mechanism because it has the final say on the meaning and effect of the Constitution. The High Court can declare laws passed by parliament to be invalid not only on the basis that they contravene express provisions of the Constitution, but also on the basis that they contravene implied freedoms or exceed implied limitations on legislative power.

An example of an implied freedom is the implied freedom of political communication. Broadly speaking, this prohibits parliament from passing laws which have the effect of curtailing public discussion of political or government matters to an extent that it incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government.⁵

An example of an implied limitation is the principle articulated in the case of Kable.⁶ That principle is to the effect that parliament cannot legislate to deprive superior courts which exercise (or are capable of exercising) federal jurisdiction of their institutional integrity by, for example, removing one of their defining characteristics. Those characteristics include independence and the ability to declare invalid governmental decisions which are made beyond power.⁷

Accountability of the courts to the parliament and the executive

The courts are accountable to the parliament because the parliament can pass laws which affect the jurisdiction and practices and procedures of the courts, provided that those laws do not infringe the Constitution, the separation of powers principle or the Kable principle. The parliament can also change the law as pronounced by the courts, other than decisions based on the Constitution.

The ultimate accountability of courts to the parliament is that a judge’s appointment may be terminated by the Governor-General on an address from both houses of parliament seeking the judge’s removal on the ground of proved misbehaviour or incapacity.⁸

The courts are accountable to the executive in the sense that the executive appoints judges, provides the premises and funding for the operation of the courts and is responsible for enforcing and giving effect to court orders. Lack of cooperation by the executive is capable of undermining the constitutional function of the courts.

Accountability of the executive to parliament

The executive is the largest and most complex of the three branches of government. This branch wields broad and significant powers that directly affect the personal and business affairs of members of the community. The executive comprises a large number of institutions, such as government departments and agencies which administer laws and government policies, or perform other governmental functions. The matters for which the executive is responsible include: 

• welfare benefits that affect people’s livelihoods;
• permits to conduct businesses;
• visas to enter the country;
• law enforcement, which may involve the deprivation of liberty through the arrest and charging of individuals in connection with the commission of criminal offences; and
• defence.

It is clear from these simple examples that the reach of the executive is vast, and that the consequences of errors or misuses of power by the executive can be very serious for those affected. It is therefore vital that there are effective accountability mechanisms to avoid such errors or abuses and to provide effective remedies when they occur.

The executive is accountable to parliament because ministers who form the government must be elected and be members of parliament. A government must resign if it loses the confidence of the parliament. Further, the executive cannot carry out its policies and programmes unless parliament appropriates sufficient funds for it to do so.

At a more detailed operational level, parliament oversees government departments and agencies and holds them to account in accordance with the principle of responsible government. Three key parliamentary oversight mechanisms support that principle.

The first oversight mechanism is the parliamentary committee system. Parliamentary committees can summon officers of government departments and agencies to appear before them to explain their policies, programmes, decisions and actions. The hearings of these committees are conducted publicly and are also usually broadcast, adding to their transparency.

An important parliamentary committee in this context is the Senate Standing Committee for the Scrutiny of Bills. Its role is to assess bills and Acts against a set of accountability standards. Those standards are whether the bills or Acts:

(a) trespass unduly on personal rights and liberties;
(b) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
(c) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
(d) inappropriately delegate legislative powers; or
(e) insufficiently subject the exercise of legislative power to parliamentary scrutiny.⁹

The second oversight mechanism is the Senate Estimates process.¹⁰ As part of the annual budget cycle, the government’s proposed expenditures for government departments and other agencies are referred to committees in the Senate. For example, the Attorney-General’s Department is scrutinised by the Legal and Constitutional Affairs Committee.

The Senate Estimates committees examine the proposed expenditure and directly question public officials by way of public hearings. All documents officially received as evidence by the committees become publicly accessible documents and the committees publish transcripts of those hearings.

The third oversight mechanism is the process for disallowing executive instruments (such as rules and regulations that are made under an Act, usually by the responsible minister). The Legislation Act 2003 contains the following procedural safeguards for such instruments.¹¹ First, any instrument must be tabled within 6 sitting days after its registration. Secondly, once the instrument has been tabled, a member of either house of parliament may give notice of a motion to disallow that instrument. Thirdly, if that motion is not resolved (by vote) or withdrawn (by the relevant member) within 15 sitting days, the instrument is deemed to be disallowed.

Accountability of the executive to the courts

The most powerful and effective accountability mechanism for the executive is the courts. The courts can undertake judicial review of decisions and actions of the executive to determine whether they are affected by jurisdictional error and thus unlawful. Executive decisions and actions can be held to be affected by jurisdictional error if they were beyond the powers of the executive, if they resulted from processes that breached the rules of natural justice or if they failed to comply with some other legal prerequisite to their validity.

If a decision is found to be unlawful, the courts can set it aside and, where possible, restore those affected by the decision to the position they were in prior to the making of the decision. By way of example, if a citizen is unlawfully detained, a court may order that they be released and be compensated for the period of the unlawful detention.¹² By way of further example, if a regulator unlawfully cancels a person’s accreditation to conduct a business, such as to drive a taxi or operate a pharmacy, the court can set aside the cancellation and restore the accreditation.

The role of the courts in judicially reviewing administrative decisions in Australia is longstanding. This power is enshrined in s 75(iii) and (v) of the Australian Constitution. These provisions vest the High Court with original jurisdiction in matters where the Commonwealth is a party or where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

Outside the original jurisdiction of the High Court, judicial review of federal government decisions is available in the Federal Court and the Federal Circuit Court.¹³ The Administrative Decisions (Judicial Review) Act 1977 sets out the decisions to which it applies, the grounds of review for those decisions and the applicable procedure.

An important limitation of judicial review by the courts as an accountability mechanism for the executive is that courts cannot examine the merits of a decision of the executive, but only its legality.

The judicial review remedies available to a successful party are also limited. The court can set aside a decision of a government department or agency that is the subject of judicial review and remit the matter to the original decision-maker to make a fresh decision. The court cannot remake the decision, nor can it direct the department or agency as to what decision to make.

Accountability of the executive to merits review tribunals

To overcome the limits of judicial review, Australian parliaments at all levels have established administrative tribunals with power to review decisions of the executive on their merits and, where a decision is found to be wrong in the circumstances of the case, to make a new decision. The new decision stands in the place of the original decision of the executive. The remedy of substituting the tribunal’s decision for the decision of the original decision-maker is much more effective than the judicial review remedy of setting aside the original decision because this leaves open the possibility of the same decision being made.

Administrative tribunals which conduct merits review consider afresh the facts and the law. The tribunal has the same powers and discretions and is subject to the same constraints as the original decision-maker.¹⁴ The tribunal can either affirm, vary or set aside the decision. If the tribunal sets aside the decision, it can substitute its own decision or remit the matter to the original decision-maker to make a new decision in accordance with any orders or recommendations made by the tribunal.¹⁵ 

Administrative tribunals are part of the executive branch within Chapter II of Australia’s Constitution. They are not courts within Chapter III. As they cannot exercise judicial power, they cannot judicially review federal government decisions or action. However, administrative tribunals are independent of the departments or agencies making the decisions subject to their review.

Administrative tribunals with power to review decisions of the executive on their merits are an example of an accountability mechanism operating within the same branch of government rather than within another branch of government.

The largest and most geographically dispersed administrative tribunal in Australia is the tribunal that I head, the Administrative Review Tribunal. The Tribunal does not have a general jurisdiction to review all federal government decisions on their merits. Rather, its jurisdiction is conferred by other statutes under which federal government decisions are made. Currently, the Tribunal has power to review decisions made under more than 400 federal legislative instruments.

The Administrative Review Tribunal was established in October 2024 to replace the Administrative Appeals Tribunal which had operated since 1976. It was extraordinary that the government in the mid-1970s agreed to expose to scrutiny and potential overturning a diverse range of its decision-making by establishing a new tribunal with power to do just that. What would have been regarded as novel at the time because of its potentially broad state is now an accepted feature of the checks and balances by which the executive branch is held to account for its decisions.

The Administrative Review Tribunal has power to review and change a wide range of federal government decisions, including in relation to immigration and citizenship, social security, compensation for federal employees, taxation, customs, patents, privacy, freedom of information, higher education, professional accreditation and regulation, and intelligence and security.

Although the Tribunal is not a court within Chapter III of the Constitution, it has some of the features of a court. In particular, it is independent of the government agency or department which made the decision it reviews. Where an applicant and an agency appear before the Tribunal, the Tribunal conducts hearings which are similar to court hearings, but less formal.

Merits review of government decisions is now accepted as a fundamental component of Australia’s democratic system. Its role extends beyond providing justice for individuals by overturning inappropriate decisions. By publishing its reasons and outcomes, it also contributes to improvements in administrative decision-making more generally and fosters good government.
 

Statutory rights promoting transparency and accountability

I will now briefly refer to three important statutory rights which promote transparency in government decision-making and, more importantly for present purposes, assist members of the community to utilise accountability mechanisms more effectively. The three rights are the right to request reasons for governmental decisions, the right to request access to governmental documents and the right to privacy.

Statutory right to request reasons for governmental decisions

An important element of ensuring federal government decisions are made transparently and appropriately is the right to obtain reasons for the decision.

This right is set out in section 13 of the Administrative Decisions (Judicial Review) Act 1977 and sections 268-272 of the Administrative Review Tribunal Act 2024.

In addition to ensuring decision-makers are accountable, this right is especially important for the person affected by a federal government decision. That is because the reasons help the person to understand the decision and also to decide whether to challenge that decision by judicial or merits review.

Statutory right to request access to governmental documents

The Freedom of Information Act 1982 confers a right upon members of the public to obtain access to official documents of federal government ministers and agencies, subject to certain exemptions. The Act also requires agencies to publish specified information proactively. Furthermore, it provides a means by which a person who claims that a document containing their personal information is incorrect can apply to have that document amended.

The objects of the Freedom of Information Act include to increase scrutiny, discussion, comment and review of the federal government’s activity and to increase public participation in government processes.¹⁶ The Act ensures that information can come to light and be discussed in the public domain, which is an important means of ensuring that the government is transparent and accountable.

Like the right to obtain reasons for a governmental decision, the right to obtain access to governmental documents may assist persons affected by a government decision to understand the decision and also to decide whether to seek judicial or merits review of the decision.

The Australian Information Commissioner Act 2010 establishes an Australian Information Commissioner and a Freedom of Information Commissioner. Their responsibilities include investigating compliance by federal government agencies with the information publication scheme.¹⁷ 

Decisions made by federal government agencies to grant or refuse access to documents are subject to review by the Information Commissioner. The Information Commissioner may conduct a review with or without holding a hearing and must publish written reasons for a decision.¹⁸ 

The right to privacy

The Privacy Act 1988 imposes an obligation on most government agencies and some private entities to collect, use and disclose the personal information of individuals only for appropriate purposes.¹⁹ Individuals also have a right to access information about them held by relevant entities and to correct it if the information is out-of-date or misleading.²⁰

Individuals who believe their privacy rights have been infringed may complain to the Privacy Commissioner, who is responsible for the administration of the Privacy Act 1988. The Privacy Commissioner can ensure that relevant entities are subject to independent scrutiny for any breaches of an individual’s privacy rights. The consequences for a breach include civil penalties.²¹ 

I will now discuss three federal accountability mechanisms, the Commonwealth Ombudsman, the Commonwealth Auditor-General and the National Anti-Corruption Commission. I will then return to the Administrative Review Tribunal and consider its interrelationships with other accountability mechanisms.

Commonwealth Ombudsman

The office of the Commonwealth Ombudsman was established by the Ombudsman Act 1976. The Commonwealth Ombudsman has the power to investigate the administrative actions of federal government departments and agencies, either on his own motion or where a person makes a complaint. The Ombudsman cannot investigate some administrative actions, such as those relating to employment, or the actions of judges and ministers.

The Ombudsman Act also confers power on the Ombudsman to investigate the actions of private sector bodies which provide services to a federal government department or agency as if the department or agency had taken those actions. This is an important accountability safeguard because it prevents government departments and agencies from avoiding scrutiny by the Ombudsman by contracting out their functions to the private sector.

The Ombudsman is required to conduct investigations in private and to afford procedural fairness to anyone likely to be criticised in an Ombudsman’s report,²² which the Ombudsman may give to the parliament to be tabled.

The Ombudsman does not make a fresh decision. Rather, if he considers that a decision or an administrative process satisfies certain criteria – such as that it was unreasonable or improperly discriminatory – he can make recommendations in relation to it. The recommendations may relate to how the decision or process may be changed and whether any redress should be provided to a person adversely affected by it.²³ 

The Ombudsman is also responsible for oversight of the Public Interest Disclosure Scheme and some actions taken by law enforcement agencies.²⁴ This oversight provides an important community safeguard.

Auditor-General

The office of Auditor-General has been in existence since Federation in 1901. The Auditor-General is an independent officer of the parliament²⁵ with power under the Auditor-General Act 1977 to audit the financial accounts of federal government entities and report to the parliament. That role is fundamental to good government because the Auditor-General is able to identify improper use of public funds, inefficiencies and wastage, and ensure that federal government entities are accountable for how they spend public funds.

National Anti-Corruption Commission

The National Anti-Corruption Commission is an independent Commonwealth agency that was established in 2023 by the National Anti-Corruption Commission Act 2022. Its role is to investigate allegations of corrupt conduct by federal public officials. After an investigation, the Commission can refer an official for criminal prosecution, civil proceedings or disciplinary action.

Public officials include ministers, parliamentarians and their staff, and staff members of federal agencies. Staff members of federal agencies include individuals employed by or engaged in assisting the agency, and contracted service providers under federal contracts administered by the agency.²⁶ The National Anti-Corruption Commission cannot investigate judicial officers.

The term ‘corrupt conduct’ is very broadly defined in section 8(1) of the National Anti-Corruption Commission Act 2022. It relevantly includes:

(a)    any conduct of any person … that adversely affects, or that could adversely affect, either directly or indirectly:
(i)    the honest or impartial exercise of any public official’s powers as a public official; …
(b)    any conduct of a public official that … involves a breach of public trust;
(c)    any conduct of a public official that … involves … abuse of the person’s office as a public official;
(d)    any conduct of a public official, or former public official, that … involves the misuse of information or documents acquired in the person’s capacity as a public official.

Conduct can constitute corrupt conduct even if a federal public official does not personally benefit from it.²⁷

The National Anti-Corruption Commission is overseen by a Parliamentary Joint Committee and an Inspector.

Interrelationships & interdependencies of accountability mechanisms

It will be obvious from what I have said already that accountability mechanisms do not operate in isolation. They often overlap and are interdependent. I will illustrate this by reference to the Administrative Review Tribunal.

As we have already seen, the Tribunal can review and remake an extensive range of federal government decisions. However, unlike superior courts which have some inherent jurisdiction and powers, the Tribunal is a creature of statute. It can be abolished by an Act of parliament and its jurisdiction can be altered by an Act of parliament. Parliament also provides the Tribunal’s funding. The Principal Registrar of the Tribunal is frequently requested to appear before Senate Estimates to answer questions about the Tribunal’s operations.

The executive has significant oversight over the Tribunal through the appointment of its members and the provision of its premises and facilities. Where an Act of parliament obliges the Tribunal to comply with a government policy, the executive can promulgate policies which can limit the Tribunal’s discretion in relation to matters covered by the policies.

The Tribunal is subject to important oversight by the courts. A party who is dissatisfied with a decision of the Tribunal has two significant avenues for redress. First, the party can appeal to the Federal Court on a question of law. Secondly, the party can seek judicial review of the Tribunal’s decision in the Federal Court or the Federal Circuit Court.²⁸ 

The Tribunal is also subject to the Freedom of Information Act and the Privacy Act. If a person is unhappy with how the Tribunal has responded to a request for access to documents, that person can complain to the Information Commissioner. If a person believes that the Tribunal has breached their privacy, that person can complain to the Privacy Commissioner. On the other hand, individuals who are unhappy with decisions of the Information Commissioner or the Privacy Commissioner can seek a review of those decisions by the Tribunal.

Furthermore, some decisions of the Tribunal (for example, the Tribunal’s response to a complaint about a staff member) can be investigated by the Commonwealth Ombudsman. The Auditor-General audits the Tribunal’s financial statements. A person who believes that an officer of the Tribunal has engaged in corrupt conduct can complain to the National Anti-Corruption Commission.

As can be seen, the Tribunal is a good example of an accountability mechanism which itself is subject to multiple checks and balances by other accountability mechanisms.

Conclusion

In my view, the extensive range of accountability mechanisms in Australia, and the checks and balances that apply to them, provide strong foundations for Australia’s robust democratic system, the maintenance of the rule of law and the promotion of justice.
 

¹ Representative government means that those eligible to vote elect members of parliament to represent them and these members are accountable to those voters in the sense that the voters can elect someone else at the next election. Responsible government means that all ministers who comprise the executive branch of government must be members of parliament and thus accountable to the parliament by complying with its procedures and answering questions from other members of parliament.

² Australian Constitution, s 128.

³ Australian Constitution, ss 5, 28.

⁴ Australian Constitution, s 57. 

⁵ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 559-62.

⁶ Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 107-8, 132-34 (‘Kable’). See Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63]-[64] (‘Forge’); South Australia v Totani (2010) 242 CLR 1, 157 [428] (‘Totani’).

⁷ Forge (2006) 228 CLR 45, 76 [63]-[64]; Totani (2010) 242 CLR 1, 157 [428]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580-81 [98]-[100].

⁸ Australian Constitution, s 72(ii).

⁹ Senate Standing Order 24 ‘Scrutiny of Bills’ (with effect from 1 July 2021).

¹⁰ Senate Standing Order 26 ‘Estimates’ (with effect from 25 June 2014).

¹¹ See ss 38, 42, 44. See also House of Representatives Practice ‘Delegated legislation’ and Guides to Senate Procedure No. 19 Disallowance.

¹² See e.g. Lewis v Australian Capital Territory (2020) 271 CLR 192, 206-7 [24]-[25], 212-14 [45]-[50], 239-51 [139]-[159].

¹³ Federal Court of Australia Act 1976, s 19; Judiciary Act 1903, s 39B, Administrative Decisions (Judicial Review) Act 1977, s 8.

¹⁴ Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, 271 [51].

¹⁵ See e.g. Administrative Review Tribunal Act 2024, s 105.

¹⁶ Freedom of Information Act 1982, s 3(1).

¹⁷ Freedom of Information Act 1982, s 8F; Australian Information Commissioner Act 2010, s 14.

¹⁸ Freedom of Information Act 1982, ss 55B and 55K.

¹⁹ Privacy Act 1988, sch 1 ‘Australian Privacy Principles’.

²⁰ Privacy Act 1988, sch 1 ‘Australian Privacy Principle 12’ and ‘Australian Privacy Principle 13’.

²¹ Privacy Act 1988, ss 80U-80W.

²² Ombudsman Act 1976, s 8.

²³ Ombudsman Act 1976, s 15.

²⁴ Ombudsman Act 1976 s 5A. See e.g. Part V Australian Federal Police Act 1979, Crimes Act 1914, Surveillance Devices Act 2004, Telecommunications (Interception and Access) Act 1979.

²⁵ Auditor-General Act 1977, s 8(1).

²⁶ National Anti-Corruption Commission Act 2022, ss 8-13, 17, 40-48.

²⁷ National Anti-Corruption Commission Act 2022, s 8(8).

²⁸ The statute that confers jurisdiction on the Tribunal in relation to a particular decision may specify which avenue for redress is available in respect of the Tribunal’s review of such a decision.