Chapter 13, 14, 15

Question 1

How is the gg selected?

Answer 1

Since 1930, selection of the gg has been made by the pm in consult .
(Statute of Westminster 1931 ratifies right of pm to advise monarch and expect right to be taken so by convention queen is bound to accept the advice of the pm as to appointment of the gg)

Question 2

How is the gg held accountable through appointment?

Answer 2

Under section of 2 of the constitution, the GG is appointed and holds their position at the pleasure of the queen. In reality by convention, the appointment of the GG occurs on the advice of the Prime Minister (since 1930).= same values as pm

Once appointed take an oath and swear to serve Australia’s monarch ‘according to the law’ in the senate in front of Chief Justice, PM and presiding officers of both Houses of Parliament = reinforces importance of Governor General being held accountable for actions

Question 3

Who is the current Governor General

Answer 3

2014 March- present Governor General is sir Peter Cosgrove appointed by Tony Abbott

Question 4

How is the Governor General held accountable through tenure?

Answer 4

• The tenure of the GG is at the pleasure of the Queen (technically unlimited tenure) However practice has Tenure of 5 years

-s3 ‘salary shall not be altered during his continuance in office”
Governor General act 1974 allows parliament to adjust salary of incoming Governor General. Since the Act was passed, the salary has increased after every term

Question 5

How is the Governor General held accountable through dismissal

Answer 5

-By convention, the Queen may choose to recall or dismiss a GG before their term is complete, only on advice of the PM. “
None has ever been removed this way , although came close in the 1975 crisis. They are usually given option to resign rather than being removed = limited accountability

• Since federation only 3 have ever resigned
• other than removal by queen no other formal mechanisms of removal by parliament or by the people

Question 6

Wha happened in the Peter Hollingworth affair and how does it show limited accountability

Answer 6

• Closest Australia has come to a GG being removed was Peter Hollingworth
• allegations arose that while he held the position of archbishop he had covered up allegations of child sexual abuse in the Anglican Church but he denied them.
• prime minister John Howard however didn’t withdraw his support from of the Governor General
  However once allegations that he raped a women in the 60s came about, he withdrew from his position (may 2003) as governor general due to public pressure and intense media scrutiny

Basically= Formal mechanisms of accountability are weak in providing accountability in comparison to informal mechanisms such as public opinion

Question 7

How does letters patent show limited accountability ( Hollingsworth affair)

Answer 7

• letters patent is an open document used by a monarch or government conferring a patent or other right
• Queen issued one in 1900 constituting office of the Governor General and setting out provisions and roles of the office of the Governor General

-After Hollingsworth affair pm asked queen to amend letters patent to allow Hollingsworth to step aside temporarily and with out question queen adjusted letter patent on 11th of may 2013
= limited accountability as Hollingsworth could just step aside instead of resigning and queen just automatically agrees

Question 8

Mechanisms of holding courts accountable

Answer 8

Internal Accountability->
- Court hierarchies & Doctrine of precedent (transparent processes)

• Natural justice: transparent trial trials processes & public confidence

External Accountability->
-Censure + removal of judges (s72)

-Parliamentary scrutiny (Abrogate, codify & clarify) + legislation (mandatory sentencing laws)

Question 9

How do appeals provide accountability

Answer 9

• Scrutiny of lower courts decision and the legal processes undertaken by the courts.
• Appeals ‘by right (on the grounds of an error of law) or ‘ by leave’ (claimed error affect on the sentence handed down)
• Attorney general can scrutinise lower court if their decisions are being frequently repealed, (cannot influence the Judiciary or change decisions)
• HC is highest court of appeal (s73) and has ability to discover miscarriages of justice and reverse
  decisions

Accountable in ratio decidendi published and open to media scrutiny ??

Question 10

Define appeal

Answer 10

Review of a case by a higher court. A form of judicial accountability exercised by courts over other courts.

Question 11

Examples of appeals

Answer 11

Eg. Andrew Mallard, convicted murderer in Supreme Court in 1994. Original conviction was quashed in 2005 and led to reform in appeals process and establishment of a seperate court of criminal appeals in WA.
Eg. Rafael Cesan and Ruben Rivadavia found guilty of drug trafficking in 2004. During original trial judge fell asleep and snores loudly. Rivadavia appealed to HC on grounds that had not received a fair trial and there had been a miscarriage of justice. A retrial was ordered

Question 12

Limits of appeals providing accountability

Answer 12

Limit: costly, difficult to file, few hc approx 5% are granted

Question 13

Define public confidence

Answer 13

Public confidence: refers to the level of faith that the public has in the judicial arm of government to act in line with community expectations, fulfil its role as an independent arbiter of dispute and interprets and applies the law in a way that is expected.

Question 14

Factors influencing public confidence:

Answer 14

Public participation in trials
Courts open to the public
Court decisions made fairly and according to the law and established legal proceedings
Courts and judges free from external influence

Question 15

Define natural justice

Answer 15

A principle of justice incorporating the rule against bias and the right to a fair hearing. Fair processes for determining the truth in a dispute, also known as ‘due process’. Courts and judges have a duty to act fairly.

( elements?)

Question 16

Elements of natural justice

Answer 16

Nemo iudex in causa sua ( impartial adjudicator) = judges and juries

Audi alteram partem ( hear both sides)= in adversarial trial system both sides present the evidence

Evidence based decisions= strict rules of evidence to ensure only evidence of the highest quality is admissible and used to search for the truth.

Open and transparent hearing except on exceptional circumstances = media report trials + ppl can walk in

Question 17

How does parliamentary scrutiny and legislation provide accountability to the courts

Answer 17

When parliamentary statutes and judge made law come into conflict, statutes prevail due to parliamentary sovereignty = upholds accountability

If parliament can legislate to reinforce (codify), modify ( clarify) or abrogate common law = upholds accountability

Mandatory sentencing-> limits judicial discretion allowing parliament to hold courts to account for not sentencing criminals according to community expectations

Question 18

Define codification

Answer 18

the process of legislating and converting common law to statute to reinforce it.
Eg. Mabo (1992) v qld

Question 19

Example of codifying common law

Answer 19

Eg. Mabo (1992) v qld where parliament codified the HC’s ruling in native title act (1993) creating a statutory framework for the processing of native title application

Question 20

Define clarification

Answer 20

Clarify: process of creating statues to modify the legal principles
Eg. Native title Amendment act (1997)

Question 21

Example of clarification of common law

Answer 21

Eg. Native title Amendment act (1997) which clarified ambiguity of the law, excluding native title in lease hold land

Question 22

Define abrogate

Answer 22

To overrule; statute law can overrule common law because parliamentary law is superior to judge-made law.
eg. Trigwell v state government insurance.

Question 23

Example of abrogating common law

Answer 23

eg. Trigwell v state government insurance. HC had upheld precedent set in searle v Wallbank 1947 that farmers don’t owe a duty of care to those injured by stray farmers. Vic parliament passed wrongs Act (1947) to abrogate searle v Wallbank and trig well.

Question 24

Define common law

Answer 24

Judge made law. Made in courts by judges deciding cases which gives rise to the need for new decisions or precedents.the doctrine of precendent is based on the principles of stare decisis. Precedents may bind lower courts within a hierarchy, they may be persuasive or binding. Common law is inferior to statute law.

Question 25

Limits to p holding courts accountable

Answer 25

Legislation passed by the parliament only applies in future, therefore it doesn’t affect cases already determined by the courts= limits accountability

Question 26

How are courts held accountable through censure and removal

Answer 26

• Judges of the high court shall not be removed except on proven misconduct or incompetence (s72) + Judges pay cannot be reduced (s72)
  = independence guaranteed but.. balanced as can be removed by gg in council on address from both Houses of Parliament in the same session
  = Accountability achieved through: parliament having ultimate removal power

-CJ Never been removed as it’s difficult process
Closest was justice Lionel Murphy in 1980s,

-Commonwealth parliamentary commission judicial misbehaviour and incapacity ( parliamentary commissions Act) 2012 enables parliament to establish formal parliamentary commission to investigate specific allegations of misbehaviour or incapacity amongst federal judiciary

Question 27

What happened to justice Lionel Murphy (accountability of the courts)

Answer 27

Lionel Murphy was nearly censured/ removed by parliament in 1980s, however investigations were ceased when revealed that he had terminal cancer.= limit to acc

Question 28

Who is the attorney general

Answer 28

A minister in cabinet with the responsibility for the judiciary and court systems. His main role is to defend the judiciary, which means supporting it so that it can function properly. Currently Christian Porter

Question 29

Define human rights

Answer 29

universal claims to certain freedoms and certain entitlements which ensure dignity, equality, respect and the ability to make genuine choices about ones own life on the basis that they are human
All rights are:
universal
Interdependent 
Indivisible 
Inalienable
Inherent

Question 30

Define negative rights

Answer 30

Otherwise known as ‘certain freedoms’. These oblige a government (and everyone else) to take no action to interfere with individual liberty. The role of the government is to create laws that prevent people from harming each others rights. (e.g., against theft and murder). First generation rights.

Question 31

Define positive rights

Answer 31

Otherwise known as ‘certain freedoms’. They oblige a government to take action so that everyone’s entitlements are met. These rights include the right to education (obliges the government to provide free schooling). Second generation rights.

Question 32

What are third generation rights

Answer 32

1st generation rights:negative
2nd generation rights positive
3rd generation rights: groups rights

Question 33

Define civil rights

Answer 33

Civil rights: rights which allow people to engage in the community and protect their beliefs. They include freedom of speech, religion, association and the press

Question 34

Define political rights

Answer 34

These rights give citizens the power to participate directly or indirectly in the establishment of the administration of government e.g. right to vote, run for office. These rights include natural justice in law, as well as freedom of association, expression and speech.

Question 35

Define economic rights

Answer 35

This right is an entitlement to a minimum standard of living. It ensures that every person is afforded conditions under which they are able to meet their needs. They include the right to work, education, food and shelter, health, housing and social security and the right to trade.

Question 36

Define social rights

Answer 36

Rights which enable a person to develop and live their life on the way of their own choosing. Rights aimed at social wellbeing. These include the right to choose ones marriage partner and family and move about within a country.

Question 37

Define cultural rights

Answer 37

Are human rights that ensure people and communities have freedom to access and participate in the culture of their choice. These rights are aimed at ensuring humans can enjoy their culture and therefore preserve and develop one’s cultural identity. When these rights are upheld people can enjoy their culture and ethnicity in conditions of equity, human dignity and non-discrimination.

Question 38

Define legal rights

Answer 38

Legal rights: Rights that apply to those accused of wrongdoing and subject to civil or criminal proceedings in court.the right for an accused person to protect themselves from severe consequences of being found liable for civil wrongs or guilty crimes

Question 39

Ways rights can be protected?

Answer 39

superior law, ordinary law, international law and bills of rights

Question 40

What express rights are protected by the Constitution in Australia

Answer 40

s51 (xxxi), individuals to receive ‘just terms’ when property is acquired by the commonwealth

s80, right to trial by jury for indictable criminal offences

s116, limited protection regarding freedom of religion, government prevented from imposing an official national religion or using a religion test for public sector employment

s117, citizens will not be discriminated against on the basis of what state you reside

Question 41

Example of right to receive ‘just terms’ when property is acquired by the commonwealth s51(xxxi)being upheld?

Answer 41

Telstra Corporations limited v commonwealth (2008)- HC determined its acquisition of fair property of telecommunications cables was just as they were originally public assets

Question 42

Example of s80, right to trial by jury for indictable criminal offences being upheld

Answer 42

brown v R- appellant attempted to elect a judge only trials after pleading not guilty to offence under commonwealth customs act (1901) but HC ruled this invalid

Question 43

Example of s116, right to freedom of religion being upheld

Answer 43

Eg,Adelaide company of jehovahs witnesses inc v commonwealth- limits right to free exercise of religion should it affect national security however did find that s116 also protects the right to have religion

Question 44

Advantages of express rights

Answer 44

• can only be changed or altered through s128’s referendum process or informally High Court decisions = strongly protected
• Govt policy can’t intravene these rights
  Parliament cant pass law that infringes on these rights

-Judiciary can still discover implied rights

Question 45

Example of s117, right for citizens will not be discriminated against on the basis of what state you reside

Answer 45

Eg. R v Louie (1985)- Supreme Court found denial of bail due to state of residence was invalid

Question 46

Disadvantages to express rights

Answer 46

• difficult to change= difficult to add new ones and remove outdated ones eg. us guns
• List can’t be exhaustive ( are rights listed more important??)
• Judicial supremacism

Question 47

What are some statuary protected rights?

Answer 47

Racial Discrimintation Act (1975)
Sex Discrimination Act (1984)
Disability Discrimination Act (1992)
Age Discrimination Act (2004)

Question 48

Advantages of statutory protecting rights

Answer 48

• parliament can pass and amend at will
• Can reflect values and attitudes
• Can be interpreted by courts
• Degree of judicial empowerment can be determined by way statute is written

Question 49

Disadvantages of statutory protected rights?

Answer 49

• less well protects than constitutional rights
  Can be changed, watered down or removed relatively easily
• Rights impose restraints/ obligations on govt but govt is in control of parliament = greater risk of seeking ways around
• List can’t be exhaustive ( are rights listed more important??)
• Judicial supremacism

Question 50

Define common law rights

Answer 50

Common law rights: right granted by the court as a result of a legal judgement that has been delivered. Refers to the rights that citizens have that come from legal traditions or conventions of the community. These rights are duly recognised by the courts.

Question 51

Examples of common law rights

Answer 51

Equality of religion
Freedom from arbitrary arrest
Right of access to courts
Right to be presumed innocent until proven guilty
Right to a free trial
Right to have or receive just compensation for deprivation of property
Right to seek legal support/legal counsel when accused of a serious crime

Question 52

Examples of implied rights?

Answer 52

• Australian Capital Television (1992)

- Roach (2007) (right to vote).

Question 53

What happened in Australian Capital Television (1992) (freedom of political communication)

Answer 53

Concerns the Political Broadcasts and Political Disclosures Act 1991, which regulated political advertising during election campaigns, and required broadcasters to broadcast political advertisements free of charge at other times. The High Court found the laws to be invalid, since they contravened an implied right to freedom of political communication in the Australian Constitution.

Question 54

What happened in Roach (2007) (right to vote)

Answer 54

This case was dealing with the validity of Commonwealth legislation that prevented prisoners from voting. The Court held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. Voting in elections lies at the heart of that system of representative government, and removal of a group of adult citizens without a substantial reason would not be consistent with it.

Question 55

Advantages of implied rights?

Answer 55

Advantages
evolve on a case by case basis
Can be overridden by parliament
Courts have strong tendency to protect rights

Question 56

Disadvantages of common law rights

Answer 56

• parliament can override

- Australia anti terror laws and treatment of asylum seekers has been criticised for breach of common law rights

Question 57

Define charter of rights?

Answer 57

refers to statutes that have been implemented to protect the rights of citizens, they do not have the same legal standing as a constitutional bill of rights and work in conjunction with other legislation. Australia has 2.

Question 58

What are the two charters of right in Australia?

Answer 58

Charter of Human Rights and Responsibilities Act (2006) (Victoria)

Human rights Act (2004) ACT

Question 59

What does the Victorian charter of human rights and responsibilities (2006) ensure?

Answer 59

• it guides human rights rather than enforces them
• New laws must be checked for compatibility against the Charter through a Statement of Compatibility
• Courts cannot invalidate legislation, parliament retains sovereignty

Question 60

Advantages and disadvantages of Victorian charter of human rights and responsibility?

Answer 60

Advantages
Promotes public pressure on Parliament to follow the HRRA or have to justify its overruling
Many disputes have been settled out of court using charter as guide
Increased awareness of human rights

Disadvantages
charter isn’t remedial, is more preventative
Plaintiff can only make an argument about the charter when bringing another action to court

Question 61

Example of rights being protected by the Victorian charter of human rights and responsibility 2006?

Answer 61

Castle v secretary
Kimberley castles bought a case to court after being denied her requests to continue IVF whilst in prison, based on corrections act 1986 which states that prisoners had the right to reasonable medical care and treatment necessary for preventIon of health. Under human rights act also argued right to privacy (s8) and family (s13], equality(s8) and to humans treatment in detention (s22). Court decided that prisoners must be treated humanly in detention and access to healthcare is a fundamental aspect of human dignity

Evaluation:
Strength: granted right to treatment
Weakness: had to piggyback case along with another action

Question 62

What does the ACT human rights Act 2004 ensure?

Answer 62

• difference to Victoria is complaints can be taken directly under the Act
• Includes 20 rights
• Statement of compatibility
• Courts required to interpret territory statutes in a manner consistent with human rights

Question 63

Advantages and disadvantages of ACT human rights act 2004

Answer 63

Positive
Increased awareness of human rights
Promotes public pressure on Parliament to follow the HRRA or have to justify its overruling

Negative
gives declatory power to judiciary
charter isn’t remedial, is more preventative

Question 64

Example of human rights being protected by the human rights act 2004 in ACT

Answer 64

Nora v R
Nora was charged with 4 offences and warrant wasn’t carried out. Was Finnally summoned to trial in 2009, starting in 2012. She applied for permanent leave to stay out of proceedings but refused an application. Judge found that she had right to make an application due to charter right to be tried without ‘unreasonable delay’

Evaluation:
Strength- granted right to appeal
Weakness- took a long time