Chapter Seventeen: Australia and the UK's approach to Upholding Democratic Principles

Question 1

Political Representation

Answer 1

Political representation refers to the degree by which they government is representative of the citizen body. In direct democracy, the people are perfectly represented, but in representative democracy politicians express the views of citizens on their behalf and thus they must represent the people.

Question 2

Australian Electoral Compromise

Answer 2

Refers to the existence of both majoritarian and proportional electoral systems in the Australian Parliament, which together combine to ensure that a strong and stable government exists in the lower house but at the same time the Australian people are represented effectively in the upper house.

Question 3

Compulsory Voting

Answer 3

Forcing every eligible citizen to vote, a system which is adopted in Australian but not the United Kingdom. Compulsory voting can be seen to give government a stronger mandate and reduce the influence of far left or right parties, but it also restricts someone’s right not to vote and leads to dummy votes.

Question 4

Popular Participation

Answer 4

Political participation refers to the degree by which voters express their ideas and values in politics, and is most often exercised by voting, but can also be exercised through participation in a political party of group.

Question 5

The Rule of Law

Answer 5

The Rule of Law is a general term which in a basic sense limits the use of arbitrary power. The Rule of Law requires that all laws are known and are applied to every citizen equally, and that constitutional limits to law especially for the government should exist.

Question 6

Judicial Independence

Answer 6

The extent to which the judiciary is separated from the executive and legislative, conforming to the separation of powers and ensuring that the judiciary can fulfil its role holding the two other arms of government to account.

Question 7

Natural Justice

Answer 7

Natural justice refers to two principles in English law, the right to a fair hearing and the right to impartiality. In more modern times, natural justice has become a more general term which refers to fairness observed in court proceedings. Principles such as the right to evidence based decisions and having open and transparent process are included in this definition.

Question 8

What is the purpose of having democratic principles within a democratic society?

Answer 8

A democracy at its most basic definition refers to a system of government in which all citizens have sovereignty over the state. Countries like Australia and the United Kingdom, however, hold their systems of government to a much higher standard. This is sometimes referred to as a liberal democracy, although the features of these systems go beyond pure liberalism. In order for a democratic government to meet this standard, it must abide by a number of different principles which ensure a free and fair society. These principles can mostly be divided into these categories:
• Political representation
• Popular participation
• The rule of law
• Judicial independence
• Natural justice
When these principles are followed, a society can be referred to as a complete liberal democracy. However, in reality abiding by a number of vague philosophies is not so black and white. Different systems of government fulfil different facets of democracy to differing extents, which allows political scientists to contrast different systems of government and rate them on the degree to which they conform to a ‘true’ liberal democracy.

Question 9

How do the UK and Australia generally fair when compared to each other as democracies?

Answer 9

The United Kingdom is the oldest country in the world and the birthplace of modern democracy. Its democratic traditions are embedded into their formal structure of government as well as their intricate system of Westminster conventions. Australia, having formed as a colony of the United Kingdom, inherited these democratic traditions, but being a very new nation Australia was able to modernize many of these old Westminster principles. The result is that both the United Kingdom and Australia are established as firm liberal democracies. The 2017 Freedom of the World report conducted by Freedom House gave Australia a score of 98% as opposed to a score of 95% for the UK, which indicates that democratic principles may operate more effectively in Australia.

Question 10

What is the main mechanism that achieves political representation in Australia and the UK?

Answer 10

The electoral system is critical in achieving the representation of the people, it is the way by which the people choose their representatives, selecting the candidate that they believe will best represent their interests and then holding them to account for the degree to which they did so in the next election.

Question 11

How does the electoral system in Australia ensure political representation?

Answer 11

Australia’s electoral system has a number of features which ensures political representation
Australian Electoral Compromise:
Australia’s electoral system is based on the Australian electoral compromise, which consists of a lower house which uses a majoritarian voting system to create a strong government, but an upper house that uses a proportional voting system to create a diverse chamber which reviews government. This ensures that political representation is still achieved in the upper house, but at the same time there is usually still a strong unified government in the lower house. For example, in the 2007 election the ALP only earned 43% of the first preference vote in the lower house but gained 55% of the total seats.
Compulsory Voting:
Compulsory voting collectively enforces political representation over the entire citizen body, making sure that elected politicians are truly the candidates the people selected. Additionally, compulsory voting has the added benefits of making sure that governments always have strong mandates and that the majority of people who will vote centre dilute the influence of the highly motivated and well organised far left and right bodies.
Australian Electoral Commission:
The Australian Electoral commission acts as an independent statutory body which ensures that elections are carried out in a way which does not give bias to any party or candidate. This ensures that the true intentions of the voting body are expressed and not the influence of political parties or the candidates themselves. The AEC also manages the creation of electoral divisions for the House of Representatives, ensuring that they contain as close to the same number of voters as possible which limits malapportionment.
Electoral Reform:
Australia is one of the rare countries that has thoroughly altered its electoral system during its existence, having major electoral reforms in 1918, 1949, 1984 and 2016. This shows Australia’s political culture is not averse to attempting to improve the electoral system which allows Australia to solve modern issues relating to political representation, such as the 2016 electoral reforms which eliminated the issue of preference whispering.

Question 12

What are some weaknesses of political representation in Australia?

Answer 12

Constitutional Malapportionment:
Section seven of the constitution ensures that each of the six states receives the same number of Senators regardless of its population, which means there exists constitutional malapportionment in the Australian upper house. This diminishes political representation because some voters are more represented then others. For example, voters in Tasmania have about 13.7 times the voting power than voters in New South Wales in the Senate. This leads to problem Senators such as Brian Harradine, who solely held the balance of power in the Senate from 1994-1996 but had only 20 000 voters list him as their first preference.
Voter Disengagement:
Increasingly in the modern era, voters have tended to become more disengaged with the political process. This especially includes younger voters, in the 2016 election less than half of all eighteen year olds were on the electoral roles.
Political Donations:
Political donations are the primary avenue by which big corporations and unions dilute political representation. Large monitory donations increase the ability of political parties to advertise and increase their influence among voters, but the parties that receive these donations feel obliged to better represent their donees. This results in corporations and unions having increased political representation over other well less funded groups and people.

Question 13

How does the electoral system in the United Kingdom ensure political representation?

Answer 13

The United Kingdom achieves political representation primarily through its first past the post voting system which elects the House of Commons, the only elected house in the UK political system. The UK House of Lords has unelected hereditary positions which significantly decreases the extent to which political representation is achieved in the upper house, but the House of Lords has limited powers to compensate for this, being only able to propose recommendations on certain legislation rather than pass or block it.

Question 14

How is political representation undermined in the United Kingdom?

Answer 14

The existence of only a majoritarian first past the post voting system in the UK creates a number of issues. Minorities are significantly under-represented in the electoral system because of its majoritarian nature, for example in the 2016 general election the Liberal Democrats attained 7.4% of the vote but only 1.8% of the total seats. First past the post systems also create vote wastage where if a candidate receives 51% of the first preference vote an is elected, then the other 49% of voters are completely alienated. The UK also does not have a federal voting system, which means that the only way to hold an elected member to account is to vote for them in House of Commons elections.

Question 15

Explain how popular participation is achieved in Australia

Answer 15

Popular participation in Australia is achieved primarily through elections, with compulsory voting ensuring that there is always a high turnout. In the 2016 Federal election for example, the voter turnout was 91%. Membership of political parties also allows citizens to actively discuss and promote policy in their own local area and even on a national scale, and Australia has an extensive range of political parties, with the Greens representing the far left, Labor the central left, Liberal the centre right, one nation the far right and a multitude of other parties that fit onto the spectrum. All of these parties regularly attain some form of representation in Parliament, and support from the people allows the people to influence the policy and decisions that these parties make. Pressure groups are another significant way for people to represent their interests in Parliament, they are easy to join and are flexible with their involvement, and they can have a significant impact on politics. For example, in 2016 the pressure group Getup organised a sitting member last campaign for incumbent Andrew Nikolic in the Tasmanian seat of Bass, which contributed to his loss of the seat.

Question 16

How is popular participation undermined in Australia?

Answer 16

Voter turnout in Australia’s young people has been dropping in recent years, in 2016 only half of eligible eighteen-year-old voters were on the electoral roles for the election. Additionally, political parties have seen a significant drop in participation in modern times, today no party has over 50 000 members, compared to over 200 000 members that once supported the Liberal Party. This gives rise to a growing trend of the domination of politics by career politicians and the alienation of the common people, a trend which decreases the extent of popular participation in Australia.

Question 17

How is popular participation achieved and undermined in the UK?

Answer 17

Popular participation in the UK is achieved mainly through voting, however the lack of compulsory voting means that voter turnouts can be exceedingly low. The voter turnout for the 2016 election for example was 68.7%, which means that just under a third of the voting body did not participate in democracy. Voter turnout has been increasing steadily since 2001, but modern trends in different countries show voter turnout dropping worldwide, so it remains to be seen if the trend in the UK will continue. Pressure groups are also an important form of popular participation in the UK, coinciding with the rise of social media in recent times, informal participation in pressure groups has significantly increased. For example, 38 degrees, an online pressure group which allows users to vote on the next issue to campaign for, has over 2.5 million members.

Question 18

How does Australia uphold the rule of law?

Answer 18

Australia is a fine example of upholding the rule of law. There are a number of mechanisms and structural elements to government which ensure this:
• The power of government is significantly limited by the constitution, through both written elements of the constitution and High Court interpretation
• The judiciary is completely independent, which ensures that it can review legislation passed by the government
• Accountability mechanisms both internal and external to Parliament raise the standards of passed legislation
• Trials are conducted fairly by established judicial processes in the adversarial court system
The judiciary in Australia has a strong history of reviewing legislation passed by Parliament and judging it by the rule of law. An example is Williams No. 1, which was declared ultra vires under interpretation of the constitution, and the Malaysian solution which was declared invalid because the statute in question did now allow the executive create the Malaysian solution.

Question 19

Give examples of the rule of law being undermined in Australia

Answer 19

Australia does have many examples where the rule of law has been arguably undermined. In particular, immigration is an area which often is under question, the secrecy of offshore detention centres especially causes issues with the rule of law. For example, the case of Plaintiff M68 shows law being applied retrospectively, a practice which breaches the rule of law. The government passed changes to immigration law before the High Court ruled on the constitutional validity of the agreement with Nauru, but in order for the changes to be valid the Parliament had to backdate the time in which the law applied. The High Court sided with the government, thus allowing the law to be applied retrospectively, which is a significant breach in the rule of law. Additionally, mandatory sentencing laws which are being practises in WA reduce judicial discretion in sentencing, which breaches the idea of proportionality in criminal sentencing.

Question 20

How is the rule of law upheld and undermined in the UK?

Answer 20

The UK is similar to Australia in its upholding of the rule of law, the judiciary follows long established legal norms and maxims which ensure that laws are applied equally in court, and laws which are made in the House of Commons are made known and apply to the politicians that make them. A significant difference from Australia and weakness however is that the UK lacks a formal constitution of superior law. While there exists a collection of statutes that makes up an informal constitution, these laws do not outrank other statute laws and cannot be interpreted by the UK Supreme Court like the constitution is interpreted by the High Court in Australia. This means that the House of Commons can effectively repeal the constitution and legislate with respect to whatever they want. The May government for instance is attempting to modify the 1998 Human Rights Act and is doing so unchecked by a formal constitution and the courts. Convention, however, plays a big part in preventing this from occurring. Even so, mere convention prevents significant breaches to the rule of law, which can be dangerous at certain times.

Question 21

How is the independence of the judiciary achieved in Australia?

Answer 21

Australia holds the judiciary independent of the other arms of government to a significant degree through the constitution. Section 71 vests the judicial power of the Commonwealth into the High Court, which has original jurisdiction in a number of areas. Section 73 gives the executive the power to choose High Court judges, but also ensures that the executive cannot remove judges for no reason or reduce their pay to influence their decisions. The Parliament can only remove a judge for ‘proven misconduct or incapacity’ vague terms which make it deliberately hard to remove a judge, thus enforcing the independence of the High Court. The High Court’s independent power has also been defended by the Boilermakers Case 1956 and Brandy’s Case 1995, which narrowly defined judicial power and held that only chapter three courts have the power to issue legally binding judgements. The High Court’s ability to independently review legislation passed by the Parliament has been practiced since 1903 in a variety of different cases. Williams No.2 is an example of the High Court judging passed legislation on its constitutional validity, and the Malaysian Solution is an example of the High Court judging executive actions under existing statute law. Any High Court case acts as evidence of the High Court and as such the judiciary acting independent of the other two arms of government.

Question 22

How is the independence of the judiciary undermined in Australia?

Answer 22

Supposed ‘tough on crime’ laws that are passed in executive dominated Parliament to appeal to raw populism have the potential to infringe upon the independence of the judiciary by violating certain judicial practice such as the presumption of innocence or the right to know what one is being charged with. Mandatory sentencing laws also restrict a judge’s power to apply an appropriate sanction in a certain situation, restricting the power of the judiciary at the hands of the Parliament and weakening the independence of the judiciary.

Question 23

How is judicial independence guaranteed in the UK?

Answer 23

The UK enforces judicial independence through the use of an independent statutory commission called the Judicial Appointments Commission, which is politically impartial and chooses the most qualified candidate for Supreme Court judges. Security of tenure and salary is secured by the 2005 Constitutional Reform Act, an act that could theoretically be repealed by the House of Commons but would never be done so in practice. In the same way, statute law which makes up part of the informal constitution prevents the Parliament from interfering with decisions in the judiciary.

Question 24

How is judicial independence infringed upon in the UK?

Answer 24

Unlike Australia, the judiciary does not have the power to disqualify unconstitutional laws, which reduces the extent to which separation between the two arms is necessary and thus weakens judicial independence. Excessive criticism of the judiciary has also been known to have occurred, in 2007 a member of the executive John Reid criticised the judiciary over the decision not to deport the murderers of a London headmaster. This violates informal constitutional principles and weakens the distance separation between the executive and the judiciary, although some may argue that it is the right of any citizen to voice their opinion over a certain court decision.

Question 25

Explain how natural justice is incorporated in a very similar way in both Australia and the UK

Answer 25

The United Kingdom is the birthplace of the adversarial trial process, a process which was created from a long history of protecting lower classes from the monarchy and aristocrats. As such, natural justice was created in the UK judicial system and is firmly entrenched in it. Australia, as a former colony of the UK, adopted this system and has natural justice equally entrenched into it. The following features of the adversarial trial systems in both countries ensure natural justice:
• An impartial judge who does not involve themselves in the arguments of the court but instead listens to the relevant arguments, decides on evidence and applies the relevant statutes
• Juries represent an accurate and fair sample of society that reviews evidence and makes a decision on the evidence. The judge also charges the jury, alerting them to evidence that cannot be admitted in the court.
• Parties that are permitted to make their own case, calling upon their own witnesses, questioning the witnesses of their adversary and ask the judge to apply the rules of evidence and ensure correct procedure.
• Strict rules of evidence which ensure that evidence is fair and accurate. Irrelevant, opinionated and hearsay evidence cannot be admitted into court.
• The courts are almost always open to the public which provides transparency for the adversarial process
In both countries, formal trial is expensive and time consuming, so the government has supplemented trial process with forms of alternate dispute resolution (ADR). Types of ADR include mediation, arbitration, negotiation and conciliation, and they are practiced in civil cases over many types of law in both jurisdictions. Legal aid for those who cannot afford it is also provided in both the UK and Australia, Australia establishing this practice in the 1992 Dietrich Case and the UK did so by passing the 1949 Legal Aid and Advice Act.

Question 26

How is natural justice diminished in Australia?

Answer 26

Australia has the problem of a severe disproportionality of Indigenous Australians that appear in criminal trial and are sent to prison. This is a result of social, historical and cultural factors but is also aggravated by things like mandatory sentencing laws which can be argued effect Indigenous Australians far more than they effect the rest of society and thus Indigenous people are not being treated equally in the criminal justice system.

Question 27

How is natural justice diminished in the UK?

Answer 27

A controversial new set of ‘terror laws’ that are to be introduced by the May Government this year are controversial in the fact that they could be seen to diminish natural justice in the judiciary. It has been argued that the laws ‘target’ the Muslim community and inflict much harsher punishments on Muslim terrorists than crimes to a similar degree, infringing the concept of equality in the eyes of the law which is a key principle of natural justice.