Why Can't the Government Be Accountable? (And Why You Should Love Admin Law) [S2-14]

Show Notes

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Music: “Insurrection”
Written by Pierre Chrétien
Performed by the Soul Jazz Orchestra
Courtesy of Do Right Music Inc.

Transcript

link to podcast

12 August 2026

Glenn
Welcome to another episode of Why Can’t They Just, a podcast about politics, policy and getting stuff done. I’m Glenn Davidson and I’m a member of the Labor Party.

Janaline
I’m Janaline Oh, I’m also a member of the Labor Party. I’m a former diplomat and a climate, environment and anti-racism activist.

Before we start, I would like to acknowledge that Glenn and I are recording this on the unceded lands of First Nations people in Australia, recognising that sovereignty was never ceded, we pay our respects to their Elders, past and present, and extend those respects to any First Nations listeners that we have today.

Glenn
Administrative law is not something that is at the forefront of most people’s thinking, and we do tend to take for granted these days that individuals do not just have to accept government or bureaucratic decisions that they consider are unfair or which have an adverse effect on their lives. But it wasn’t always that way. Prior to the Administrative Decisions (Judicial Review) Act of 1977, the ADJR Act, challenging government decisions was expensive and generally involved litigation in superior courts in what was a narrow, specialist area of law. That generally made it, if not inaccessible to people of limited means, at least very difficult to access and litigate.

In more recent times, we have seen governments made accountable through Royal Commissions into Robodebt, Aged Care and People with a Disability, and the establishment of a National Anti-Corruption Commission in 2023.

But first, let’s go back to where it all started. Janaline, what brought about this change and why was it so significant?

Janaline
Maybe I’ll just take another step back from that and just explain to our long-suffering listeners why we think admin law is so fascinating and important. It really comes to this issue of government accountability, as you say. I think the way that governments have evolved in democratic countries - they’ve kind of evolved from systems where you’ve had a centralised ruler like a monarch, who would make decisions, bring them down. They might be arbitrary and people just had to put up with it.

Once you get the advent of democracy, I think there was a huge faith in the capacity of the democratic process through things like elections to bring accountability to government. That has clearly not been sufficient. I mean, apart from anything else, we only have elections once every three years. And in the meantime the government’s making millions of decisions that are affecting people’s lives. And if those decisions are not being made with integrity, and if those decisions are not being made in a way that benefits the people who are affected by them, then that can lead to actually devastating consequences for people’s lives.

And this is what we saw in the Robodebt, Aged Care and Disability Royal Commissions, all of which found that decisions were made that literally destroyed people’s lives. You know, people died because of terrible administrative decisions. So I think the creation of a mechanism like the Administrative Decisions (Judicial Review) Act is tremendously important, because it lays out the rules and the processes by which an ordinary person can challenge a government decision that adversely affects their life.

Glenn
The first structure that was put in place in response to that Act was the Administrative Appeals Tribunal back in about 1977, and as that evolved and developed, the courts also developed various legal concepts such as jurisdictional error, which meant the courts could examine the exercise of public or bureaucratic power for legal error. It also meant the parliament could not completely insulate decisions from judicial review.

Janaline, what did this mean for procedural fairness, and who benefited from these changes?

Janaline
I think what it boils down to is that the courts can ensure that government decision makers do not stray from the limits of their decision-making power. The Administrative Appeal Tribunal provides people with the opportunity to challenge decisions that they think have been wrongly made. It is about keeping government decision makers accountable for the outcomes of their decisions.

Glenn
That really gets to the nub of it, because it’s not just a matter of having decisions being made that are subsequently appealed; this Act had a very strong upstream influence in terms of how decision makers actually go about making decisions. It encouraged them to be clearer in their reasoning, to certainly keep better records about why they were making decisions, what factors they were taking into account, what sources of information they were drawing on, for example, and doing a lot more careful fact-finding as part of their process in the agency.

Janaline
Decision makers don’t want to have to go through those processes. If you keep having your decisions challenged in the Administrative Appeals Tribunal and you keep losing, then that delivers a pretty strong message that you are not doing your job as a decision maker very well. It delivers a strong message that the government has not got the right frameworks and decision making processes in place to ensure that good decisions are made and that those decisions are rigorous and robust. And ultimately, it erodes trust in government because, if a government keeps making bad decisions and tribunals keep saying ‘you’re making bad decisions’, then people are not going to trust that government when it says it wants to do stuff, because they’ll say ‘well, you’re not doing it very well’.

So I think it has been an important discipline. That said, part of the job of the Administrative Appeals Tribunal is actually to go through those claims and work out which ones are well-founded and should have their decision reviewed, and the ones that are not. But I think ultimately it does make bureaucrats think carefully about how they are implementing the will of the minister.

I think there has been too much of an emphasis in recent decades on keeping ministers happy and not enough emphasis on actually providing the frank and fearless and impartial advice that is enshrined in the Westminster system. I think there is a cultural issue in the public service that was laid very very bare by the Robodebt Royal Commission, which demonstrated the extent to which public servants were willing to act effectively unlawfully in order to keep their ministers happy.

Glenn
There’s one area that’s been particularly prominent in terms of appeals against administrative law, and that’s been against migration law. Migration cases have really dominated administrative law and issues of government accountability since the 1990s. The High Court has repeatedly addressed issues of procedural fairness, limits on executive power, jurisdictional error, and detention and deportation decisions. The High Court has also revitalised the grounds of unreasonableness, which recognises that some decisions are so irrational, disproportionate or lacking in justification that they exceed legal authority.

Unauthorised migration, irregular arrivals or asylum seekers, and I purposely did not call them ‘illegal arrivals’ has been a political and social hot-button issue for decades now and it is still part of the current political discourse. Managing the movement of people into the country and the status of overstayers has been a wicked problem for governments of both persuasions and has seen cases decided by the High Court that have impacted on the policy and approach of governments.

Janaline, how does this test of wills between the Executive and Judicial arms of government serve the interests of current and prospective Australians and why can’t the immigration minister and the government of the day just act with impunity in our name?

Janaline
This kind of comes back to some issues around human rights that we’ve discussed previously in the podcast around the need for a judicial branch that will protect the rights of unpopular minorities. Throughout history, one of the most consistently unpopular minorities in any society is migrants. Their popularity waxes and wanes according to political and economic and social circumstances, but generally when things start getting tough for a local population, migrants are a very convenient and easy scapegoat. I think this sort of comes to why you wouldn’t want to give a government unfettered power over the lives and fates of migrants. And we’ve seen, where governments do have that kind of power, some pretty awful things happen.

In Myanmar, in the early 2010s, the government and the military forces conducted what has been very credibly described as an effective genocide against the Rohingya Muslim minority in that country, drove out millions of people, killed hundreds of thousands, committed absolute atrocities. And something like 80 per cent of the Burmese population supported it, because they were clearly a deeply unpopular minority.

I’m not suggesting any Australian government is going to conduct that kind of campaign of violence against any group in Australia, but definitely I think the courts’ insistence that, even where there is ministerial discretion, it needs to be backed by reasonable justification and a reasonable case for why it is in the national interest that they make that particular decision, has really ensured that when various populist waves come over the country that are targeted against migrants, they don’t lead to unconscionable outcomes.

And I’m thinking about things like in the aftermath of the 9/11 terrorist attacks in 2001, when Al Qaeda operatives crashed planes into the twin towers in New York, killed a shockingly large number of people; the Bali bombings a year later that killed a very large number of Australians, led again to significant, beefed up counter-terrorism measures in Australia. And all through that, there was a really strong current of antipathy towards particularly Muslim people in Australia, and particularly migrants. So this narrative that is being enthusiastically promoted by certain political parties around the world that migrants are criminals and that you need to stop migration in order to stop criminal behaviour, leads to some pretty terrible decision making that has some pretty devastating consequences on people’s lives. And it is absolutely essential in that context that you have proper administrative procedure that requires rigorous and well-reasoned decision making, and that the courts are willing to enforce that.

And I would say, this is not unique to conservative governments. The current Labor government has made some decisions that I genuinely think have not helped the national interest, and that have helped to feed a really unfortunate narrative of tarring migrants with that populist brush of being a security threat. And I’m thinking particularly of the treatment of non-citizens who have been convicted of serious crimes, who have served their time in prison, and of whom the government says we’re going to deport them on character grounds because they’re serious criminals and we can’t have them running around in society. An Australian citizen who commits a serious crime and serves their time in prison is released into the community and lives in the community. I don’t see how a non-citizen in exactly the same position poses a greater threat to the community than that person. The rates of recidivism, in other words, commission of future crimes, by non-citizens, are no higher than those rates for Australian citizens. I think they are actually lower. But because they are non-citizens, somehow we have to punish them again and in perpetuity by deporting them.

Now for some non-citizens in that category, it makes a lot of sense to deport them: they were perhaps temporary residents, they committed a crime, they did their time, they should be deported back to their home country. For some of them, particularly permanent residents, some of them have been in Australia for their whole lives. They have no family, they have no connections back in their home countries. They have families, and connections, and support networks in Australia. I don’t see why that distinction should be made, and yet this Labor government has pandered to that narrative. That somehow a person who commits a crime that’s not an Australian citizen needs to be punished more than a person who commits a similar crime who is an Australian citizen.

I think the fact that the courts have intervened and said ‘this is not rational, you cannot do this, you cannot apply additional punitive measures that the judicial system has not sanctioned’, in other words, once you’ve done your time, as far as the judicial system is concerned, you have been punished, you are free to go. So for the government then to say ‘oh, we’re going to put in place these additional administrative measures such as deportation, or monitoring or ankle bracelets or restrictions on movement, that we would not apply to a similar case where the person in question is an Australian citizen’ cannot be allowed. It is not rational, it is not reasonable. We are lucky that we have judges who are willing to make that call against governments pandering to unhelpful and frankly quite racist populism.

Glenn
If I just step back a little bit, I mentioned at the start there about unauthorised migration, can you just clarify, Janaline, when we’re talking about asylum seekers and illegal arrivals, what is the difference there?

Janaline
So as you say, Glenn, it is not illegal to seek asylum. It is completely lawful and Australia has obligations under international treaties and domestic law to treat asylum seekers with compassion, to process their cases in an orderly manner and to determine whether they deserve protection or not. It doesn’t matter, actually, whether they come by boat or whether they come by air as far as our international obligations are concerned. Successive governments have tried to discourage people coming by boat by doing things like creating offshore processing zones.

And coming back to our principal issue of government accountability, one of the most troubling things about the whole exercise of offshore detention has been the lack of transparency, the denial of visas to journalists who want to go and document what is happening; the gagging of medical staff, because a number of medical staff who have served in these places had come back to Australia and gone public with the conditions that they had witnessed there. They are made to sign contracts that include very stringent non-disclosure arrangements.

So coming back to the idea that democracy dies in darkness, government accountability is impossible unless people know what is happening. But in the meantime, real people’s lives are being affected in a pretty devastating way. So I think it has been incredibly important that the courts have at least gone some way to shining a light on the practices of offshore detention, on the actions of government officials in this space, and ensuring that decisions are at least rigorous and well-supported and rational, even if they can’t change the actual policy.

Glenn
Now while we’re talking about the importance of transparency in government actions and decision making, we should digress ever so slightly to address the issue of who has access to decision makers and the ability to influence them. This may be via lobbying, which of course is a legitimate part of the democratic process, and or by political donations. But the issues arise around probity when there is a lack of transparency. All politicians and parties can be evasive about who they meet and the circumstances of those meetings and the compulsory reporting of those political donations is delayed.

Janaline, do we really have accountability and integrity in this aspect of our political landscape?

Janaline
One of the things that a number of the crossbench have been pushing for is more transparency of who gets parliament house passes. Now there is a pass register where everybody who gets those orange lobbyist passes is recorded alongside the MP or senator who sponsored them. I think that is a reasonable thing to do. I do resist the idea though, that having access means having influence. I think it is very reasonable for decision makers to meet a very wide range of stakeholders. That includes people from the community who have concerns, but it also importantly includes businesses who are going to be affected by whatever legislation or regulation is being proposed. For two reasons: one is, they literally have a real stake in the outcome, in terms of their business; but two is, they actually know how the business works, and they actually have a clue as to what is going to work and what is not going to work. I think it is reasonable for decision makers to have a healthy degree of scepticism when they’re talking to people who have a direct financial interest in whatever regulation or legislation that is being put forward. But I also think it is a very bad idea not to talk to those people, because there is a very good chance that you’re going to introduce legislation that is either unworkable, or has unintended consequences, or is just not going to achieve the objective that you’re setting for it.

So I think it is reasonable to have transparency. I don’t think it is reasonable to imply that, just because you talk to a commercial company, or a commercial lobbyist, that you are somehow getting sucked into their world view.

Glenn
Yes, and that all makes perfect sense: of course they should talk across the spectrum, and there’s that tension if you like between transparency and confidentiality. Not everybody needs to know what’s in every conversation that a prime minister or minister or member of parliament has. There’s also the whole issue of political donations, and as we’ve seen recently in reporting, the Prime Minister attending $10,000 a plate dinners raises eyebrows and questions from some parts of the media with an implied suggestion that there is something improper in that. Is the media right to go after those sorts of incidents?

Janaline
Yeah, I think political fundraising is problematic. I mean, look, all political parties do it. Even those who claim they don’t take corporate donations; they still do have very significant donors who have made their money through business. The government has introduced legislation to reform political donations; so there are now lower caps on donations that have to be declared, there is a very significant shortening of the time frame in which donations need to be declared. It’s not quite real time but it’s getting close. I think that is all good: there are caps on political spending.

I would like serious consideration of South Australia’s total ban on political donations. Now, under South Australian law, all elections are effectively publicly funded. Yes that is an impost on the budget, but it is also an investment in democracy. And one of the arguments that has been made by the crossbench is that having such a system massively privileges incumbents, and privileges major parties, because obviously as they’re running candidates across many many seats, they have a party organisation. They can put out advertisements that benefit the party that are not attributed to specific candidates. Whereas an independent running in a seat is only running in that seat and they don’t have that party infrastructure behind them. What they’ve done in South Australia is that they have given a specific allowance to recognise that.

And I’ve got to say, if you look at the last South Australian election, which was the first one conducted under these rules, you would have to say that this did not disadvantage minor parties. One Nation got nearly as many seats as the Liberal Party. There were a number of independents who got elected. I think the South Australian election proved the robustness of their laws. And I think it’s a really - I think it’s actually the best way to stop this fairly toxic cycle of chasing donors.

The other issue around access is this call to publish ministerial diaries and even, I’ve heard calls to publish minutes of all the meetings that ministers have with people. I think there is an argument for publishing ministerial diaries, at least the important official calls. Many state government ministers do this. I think the idea of actually publishing even summary reports of those meetings is a terrible idea. I think if you want to ensure that nobody ever says anything meaningful, you publish everything they say.

So a lobbyist from an industry that the government is about to regulate goes to the minister, and the minister says ‘I need to do this for the following reasons’, and the industry leaders say ‘well, I can sell this much to my members’. If that is public, they no longer can sell that to their members.

So I think it is reasonable to have transparency in terms of who gets access; I don’t think it is reasonable to extend that transparency to a point where it actually makes outcomes more difficult to achieve.

Glenn
Yeah, so it’s a big and challenging area, and that whole issue of the public interest versus what the public is interested in.

But let’s come back to the matter of administrative review. When the Albanese government came to office in 2022, it determined that the Administrative Appeals Tribunal, that had been in place for almost half a century, was in need of review and renewal. In fact, it concluded that the AAT had ceased to be efficient and effective and had lost public confidence. So the Albanese government abolished the AAT and replaced it with the Administrative Review Tribunal in 2024. The focus now was on re-establishing the independence of the tribunal, having a merit-based appointments process, and a much more robust and transparent review process. The current ART legislation expressly states that reviews should be independent, fair and just, accessible and responsive to diverse users, conducive to improving government decision making, and able to sustain public trust and confidence. And it’s also about reducing the backlogs and resolving matters earlier.

Janaline, things have moved on quite a lot from the 1970s. So is the creation of the ART a new beginning? Or is it really just a return to first principles? Do you think model adequately addresses the problems of politicisation and cronyism that had become a feature of the AAT? What’s to stop the current government doing the same thing themselves as they get to the end of their time?

Janaline
So I think the main thing that protects it against politicisation is the very clear articulation of what constitutes merit, and the very clear insistence that appointments be merit based, in a way that was not the case for the previous Administrative Appeals Tribunal. I mean there were people appointed to that tribunal who essentially had no relevant qualifications at all, who had no relevant experience at all. The government can certainly appoint people that they consider politically more sympathetic - any government, not just this one; any future government. But I think it’d be very hard to do the sort of blatant jobs for former candidates that the previous government indulged in before the 2022 election.

Also the very clear articulation in the legislation around the importance of independence will also be an important brake on cronyism, because even when you appoint cronies to these positions, if those cronies are given clear independence from the government, sometimes they actually exercise it. So I think all of those things will certainly help to protect that institution from a government that wants to stack it.

Glenn
That’s encouraging. It’s still early days and we’ll see how it goes.

That brings us close to the end of our time. So Janaline, do you have any final statements as we finish up. Do you really think this is how a democracy should hold its own bureaucracy to account? And do you think the public can have confidence in this model?

Janaline
Well, if you’re talking about the Administrative Decisions (Judicial Review) Act, I think it has actually proven itself over the last half-century to be an effective brake on arbitrary government decision making. It hasn’t been perfect, but I think it’s done a pretty good job. The Australian courts have done a pretty good job of applying it in a way that holds governments to account. And importantly, as you say, you know when you were talking about the sort of upstream effect of having these mechanisms in place, I think it has forced decision makers to really think about the reasons for their decisions, and to ensure that those decisions are robust and consistent with that Act.

But I also think there is a broader question about government accountability in an age of automation, and particularly with the looming prospect of artificial intelligence being used to make or contribute to decisions that will fundamentally affect people’s lives. And I’m talking about decisions around welfare payments, decisions around eligibility for disability support, including the sort of practical support that you get from the National Disability Insurance Scheme, around things like assessments for aged care.

At the end of the day, I think the responsibility for all of those decisions needs to lie with a human. You can certainly use automated tools to help you make that human decision. You can use automated tools to make certain types of data easier to assess and easier to understand. But unless there is a human ultimately that is responsible, and unless there is a capacity for review of those decisions, then I think you are going to end up with tragedy and ruined lives, and I don’t think in a country like Australia, that is an acceptable outcome.

One of the reasons that I wanted to do this episode on administrative law, apart from my own nerdy fascination with it, was that in the conversation that we had on the National Disability Insurance Scheme. One of the things that was put forward in the draft legislation, which I hope is not going to survive, as that automated decisions would not be reviewable. I don’t think government decisions should be immune from review when they affect real people’s lives. And one of the things that made me very happy at the recent ALP National Conference was, I was very happy to see the success of some amendments to the Labor national platform that emphasised that automated decision making should always be subject to human oversight and human review, and that vulnerable people’s lives would not be left to the mercy of a bot.

But to the broader question of the first principles of government accountability, I think the people who elect them have the right to have decision makers made accountable. And when I say decision makers, I’m not talking about the junior officer who’s making a difficult decision about a particular visa case; I’m talking about the senior people in the public service who are overseeing the decision making framework and the criteria and the rules. I’m talking about the ministers who are elected to implement policy, but to implement policy in a way that ensures that, when it affects real people’s lives, there is accountability and there is a framework for people to seek recourse for unjust decisions.

In terms of the Administrative Review Tribunal, I mean, as you say, it’s only a couple of years old, it needs still to prove itself. One of the things that we haven’t much talked about so far is the National Anti-Corruption Commission, which is also only a few years old and, quite honestly, has not had a great initial few years. Recently, the first head of the NACC, Paul Brereton, resigned because he was found to have professional and personal relationships with some of the people that were subject to NACC investigation and he didn’t make that sufficiently clear, and he didn’t remove himself sufficiently from the processes that were investigating his friends, effectively. He also engaged in consultancy work with the Department of Defence that was arguably inconsistent with the requirements of independence in the NACC charter.

So I think that’s all really unfortunate, actually, because the NACC itself was a very significant achievement for government integrity: it was a very significant sign that the government took integrity seriously. There was a lot of controversy around its terms of reference, and the idea that hearings would not automatically be public, but only be public in exceptional circumstances. I think that is a thing that the government should consider reviewing. There are different arguments for and against public hearings. I think one of the significant and legitimate arguments against completely public hearings is that it can destroy people’s reputations if they’re accused of something and then later found not to have done the thing they were accused of.

On the other hand it is also important for the public to see the NACC at work. It is important for the public to see powerful people held to account, and I think this is one of the values of Royal Commissions, for example: it forces powerful people to testify in public about their actions and to justify their actions in that context. So I think the NACC is a work in progress and still has a little way to go.

Having said that, I think accountability in Australia is actually not bad. There are different mechanisms that work more or less well. You know, there’s been a lot of debate about freedom of information laws, a lot of complaints that the current government is really tightening the screws on freedom of information. I think freedom of information is incredibly important. I would also say that, as a person who has served as a government official overseas, some freedom of information requests are extraordinarily time-consuming for extraordinarily little public benefit. And it is a very very expensive use of government resources. It costs about half a million dollars to keep an Australian-based officer overseas, once you take into account, you know, not just the salary but you the accommodation, the infrastructure, the security measures at post. All of those things are very expensive; to have those people spend their time trawling through files of ancient documents that don’t particularly reveal much I think is a terrible use of public funds.

I think there is a need to strike a balance between genuine freedom of information requests that will genuinely uncover important things for the public to know and a pretty significant volume of what I would call fishing requests in the hope that you might uncover some sort of gotcha.

Glenn
So we’ve talked about a lot of dimensions of accountability, government accountability, there, and I think it’s pretty obvious that government accountability is a journey rather than a destination, so as a final final comment, Janaline, where do you think Australia is on a scale of one to ten on that accountability journey.

Janaline
I mean I’ve worked in a number of countries as a diplomat and I would say that Australia is definitely better than most of the countries I’ve worked in; partly because we’re quite wealthy and we’ve got resources; partly because we’re not a secretive authoritarian state. Having said that, we do have a way to go. And I think politicians and ministers and prime ministers need to be less nervous about telling the Australian people true things about how decisions are made.

I think one of the things that really corrodes public trust in politicians is the idea that they’re dodging questions and they don’t want to answer stuff. I actually think that our ministers and our parliamentarians would do well to not adhere quite so rigorously to the talking points that they get from ministers’ offices or the prime minister’s office every day, and actually respond honestly. And sometimes the honest response is ‘I don’t know’, and sometimes the honest response is ‘actually that was a mistake and we shouldn’t have done that, I wish we’d done it differently and this is what I’m going to do about trying to fix it.

I feel like owning up to mistakes and taking responsibility for doing things that haven’t gone well really does help to boost trust in government, because people understand that ministers are also human. And if all they get from them in blame-shifting or dodging or cover-ups, then they’re not going to trust them.

I think this government has actually done more than most governments I can think of in my lifetime to do that. I think ministers in this government have been willing to say, ‘well, we’ve changed our minds because things are different, as the Treasurer did in terms of, you know, tax changes that were contrary to election commitments. I think there have been some occasions where ministers have actually owned up to getting things wrong. But they’re vanishingly rare. They’re not very good at doing that and I think if they were willing to be a little bit more upfront with the Australian people, that would do a lot to improve trust in democracy, trust in them, and trust in government generally.

Glenn
That was another episode of Why Can’t They Just? The piece that we use for our theme music for this podcast is a piece called Insurrection by Pierre Chrétien, performed by the Soul Jazz Orchestra, courtesy of Do Right Music Inc.

Janaline
You can also hear us on Canberra community radio, 2XX FM 98.3 on Tuesdays between 6 and 7, or via 2XXfm.org.au. If you like our work, consider supporting us on Patreon, via our website whycanttheyjust.com.au.

Glenn
I’m Glenn Davidson.

Janaline
I’m Janaline Oh, and this is Why Can’t They Just?