Democratic principles Flashcards
Political representation protections and threats (6)
Electoral and voting systems, malapportionment and gerrymandering, single and multi-member electorates, electoral reforms, representatives, compulsory vs non ocmpulsory
Australia and USA voting systems
Aus- Preferential and proportional voting
USA- first past the post, electoral college
Positives of electoral and voting systems in Aus and USA
Aus- Electoral compromise to balance forms of representation, Vote splitting eliminated, and vote wastage reduced increasing effectiveness of individual votes, Secret ballot, Compulsory enrolment
USA- Simple to understand and use, Secret ballot, Smaller states have a say
Negatives of electoral and voting systems in Aus and USA
Aus- Complexity of Senate voting confuses voters, Voters tend to vote above the line (give choice of candidates to parties – no control)
USA- No electoral compromise (FPP in congressional and presidential elections), Suffers high vote wastage and vote splitting – reduces effectiveness of individual votes
Issues with voting laws in America
Restrictive laws – 13 states have, 322 introduced to 45 states, 4 states have interference laws, 78 introduced in 20 states, 13 states have expansive laws (good
Malapportionment
Different electorates have large differences in number of voters in them
Positives of malapportionment and gerrymandering in Aus and USA
Aus- One vote, one value in HoR, No deliberate gerrymandered
USA- Try to limit malapportionment
Negatives of malapportionment and gerrymandering in Aus and USA
Aus- Malapportionment in senate (s7)
USA- gerrymanders in many electoral districts
Gerrymandering issues in the USA
Democrats have 3/13 seats in Congress but won 48% of votes, 2021- Republicans redrew 187 districts whilst Democrats had 76
Positives of single and multi-member electorates in Aus and the US
Aus- Absolute majorities and one vote, one value shows will of majority in HoR, HoR uses single member electorates which support delegate/trustee style of representation and accountability
USA- Single member electorates in both houses means all members of congress have strong delegate/trustee links to constituencies, Accountability of reps is high
Negatives of single and multi-member electorates in Aus and USA
Aus- Preferential voting disadvantages minorities (reduces minority representation), Weak links between Senators and constituents reduce delegate/trustee representation and accountability
USA- Candidates can win without an absolute majority of votes if there are three or more candidates, Undermines majority rule principle
Positives of electoral reforms in Aus
Compulsory voting (1924), group ticket reform (2016), talks of voting age reforms
Negatives of electoral reforms in USA
No compulsory voting, Restricting mailing ballots – restricting participation, Voter ID laws, might not be willing or able to show to vote, Restricting mailing ballots – restricting participation
Positives of representatives in Aus and USA
Aus- Minorites achieve representation in Parliament, 57% women in Senate, 38% women in HoR
USA- Many public offices elected (including school boards) increasing representativeness of public services, Seven states elect judges
Negatives of representatives in Aus and USA
Aus- Social, cultural and economic diversity is not well represented in HoR or ministry, Not a citizen, can’t vote, Politicians must give up dual citizenship to be voted in
USA- FPP limits representation of minorities in congress, Social diversity not well represented, Electing public servants can politicise administration of law, Electing judges can undermine judicial independence and rule of law
Representation in congress
88% are Christian identifying, 63% in population, 28% women, 51% in population
Positives of compulsory and non-compulsory voting in Aus
Aus- enhances representation and participation
Negatives of compulsory and non-compulsory voting in Aus and USA
Aus- Undermines right to not vote, Donkey votes, Uninformed voters
USA- Very few people vote, Have to encourage people to vote
Popular participation protection and threats (6)
Voting, legal protections, participation, electoral system, political parties, pressure groups
Positives of voting in Aus and USA
Aus- Proportional voting allows for diverse ideologies and beliefs
USA- Not compulsory increases power of the minority
Negatives of voting in Aus and USA
Aus- Forced to vote (don’t have to formally vote)
USA- Not compulsory voting, State by State voting rules
Positives of legal protections in Aus and USA
Aus- common law protects equality of political rights and freedoms, anti-discrimination statutes support popular participation by reducing disadvantage, Implied right of freedom of political communication, Section 41 and electoral act
USA- bill of rights protects political freedoms and rights, statutes like civil rights act protect political rights
Negatives of legal protections in Aus and USA
Aus- common law is weakest type of law, no statutory or constitutional federal bill of rights
USA- “equality” depends on wealth, race, religion and other criteria, does not sign or ratify ICCPR, 12 States ban people from voting for life if they have been charged with a felony (Eg Wisconsin)
Positives of participation in Aus
senates proportional electoral system enables more diversity
Negatives of participation in Aus and USA
Aus- participation of Indigenous Australians limited by social, cultural, economic and geographical barriers (Vote turnout in Lingiari was 67%)
USA- over policing of African Americans and other minorities suppresses participation, voter suppression can reduce political rights, South of the nation has the lowest voting turnout (48.9%), Highest was Midwest (54.7%)
Positives of electoral system encouraging participation in Aus and USA
Aus- compulsory voting strongly encourages participation – very high voter turnout
USA- Big States can’t overpower the small States
Negatives of electoral system encouraging participation in USA
USA- not compulsory, so low levels of voter turnout, Gerrymandering distorts effectiveness of political participation
Positives of political parties in Aus
Aus- 5-7 parties that regularly achieve seats (wider range), Unrestricted memberships, Can donate to parties
Political donations in Australia
$177 million was used for political funding in 2022, Joint committee on electoral recommends the disclosure threshold for donations to be $1,000 and real-time
Positives of pressure groups in Aus and USA
Aus- operate freely, Provide mechanism for those who can’t vote, since 2008 transparency has increased over pressure group activity
USA- operate freely, Provide mechanism for those who can’t vote
Negatives of pressure groups of Aus and USA
Aus- corporatism distorts democracy, some are highly influential eg mining
USA- very influential because of financial resources eg NRA, corporatism distorts democracy due to influence of powerful groups
Climate 200
Climate 200 raised $13 million for independents, Enhanced political participation of independents
Rule of law protections and threats
Consitution, accountability of executive, accountability of legislative, courts, applying to all
Positives of constitutional protecion in Aus and USA
Aus- Separations of powers (constitution protection and Westminster convention- drawn from and accountable to parliament), Judicial independence protected by s72
USA- Strict constitutional separation of powers, Some legal rights protected by the constitution (E.g 5th amendment)
Negatives of constitutional protection in Aus and USA
Aus- Executive dominance, Conventions are not binding
USA- increased partisanship
Positives of executive accountability in Aus and USA
Aus- Cabinet, ministry and public service are held accountable through parliamentary oversight, Judicial review (has limited some powers under s61), Senate can initiate inquiries into the executive
USA- Congress (impeachment) and courts check presidential power
Negatives of executive accountability in Aus and USA
Aus- Executive dominance, Executive appoints judges (unchecked)
USA- Increased partisanship (Especially in senate who votes on impeachment), Possible misuse of presidential pardon (Trump pardoned convicted political allies), Trump dismissed five inspector generals in 6 weeks in 2020
Impeachment and indictments of Trump
First president to be impeached twice, Prosecutors allege Trump made false claims of voter fraud in swing states to try and get results overturned, Facing 78 criminal charges across 3 States
Could still be elected as president even if convicted (but can’t vote)
Positives of legislative accountability in Aus and USA
Aus- Senate standing committee for the scrutiny of bills, Senate estimates committee, Parliamentary joint committee on human rights oversees human rights impacts of bills
USA- Constitution prevents congress from making retrospective laws, Office of the inspector general investigates government corruption, Legislative and investigative committees of congress scrutinise bills
Negatives of legislative accountability in USA
Trump dismissed five inspector generals in six weeks
M68 (2015)
Alleged legality of government agreement with Nauru, Parliament passed retrospective law to make the original agreement from 2012 legal, HC ruled retrospective laws are constitutional however they undermine rule of law
Common law against retrospectivity
Positives of protection of rule of law by courts in Aus and USA
Aus- Presumption against retrospectivity, Common law rights
USA- Judicial independence protected by article 3 of the constitution, Judicial appointments require the consent of the senate, Use of grand juries in serious indictable cases
Negatives of protection of rule of law by courts in Aus and USA
Aus- Mandatory sentencing, Presumption of innocence and onus of proof can be reversed (terrorism offences)
USA- Patriotic act increased executive power by removing judicial checks, Judicial appointment is a politicised process (Appointed by president), Expensive legal fees, hard to access
Positves of rule of law applying to all in Aus and USA
Aus- Royal commission into Aboriginal deaths in custody
USA- State Governors scrutinised policing since the BLM protests
Negatives of rule of law applying to all in Aus and USA
Aus- Over policing of Indigenous minorities (22 ATSI died in police custody 2021-22 – 34 in 2007-08) , Children in watchhouses
USA- Over policing of African American minority (increased incarceration), Militarisation of police forces
Patriot act
Expanded government authority to spy on citizens, Reduced checks and balances on judicial oversight and public accountability, Violates 1st and 4th amendment, Undermines right to presumption of innocence and right to know the crimes brought against them
Protections and threats of judicial independence
Constitutional, appointment and removal of judiciary, minimalist and maximalist constitution
Positves of constitutional protection of judicial review in Aus and USA
Aus- Strict separation of federal judiciary, HC interpretation of s71 preserving independence of chapter 3 courts, Section 72 outlines appointment and dismissal of judges (pay can’t be diminished)
USA- Strict separation of federal judiciary, Article 3
Positives of judicial appointment and removal in Aus and USA
Aus- Executive appoints judges, Legislature dismisses judges, Section 72 outlines they must retire at the age of 70, “Proved misbehaviour or incapacity”
USA- Judges are nominated by the President and confirmed by the Senate, Congress impeaches and removes judges
Negatives of judicial appointment and removal in Aus and USA
Aus- Executive appointment is unchecked, No judge has been removed since federation, Vasta and Sandy Street
USA- Appointments become politically contested (President can choose judges that aligns with him, republican controlled Senate, If Democrat senate could stop any judge from passing), 7 States elect judges by popular vote meaning they compete for re-election (could influence their decisions), Last supreme court judge to be impeached was in 1805 however he was found not guilty by the Senate, no term limits (Stephen Bryer retired in 2022 at the age of 84)
Positives of minimalist/maximalist constitution in Aus and USA
Aus- judges can’t determine rights
USA- Constitutional bill of rights empowers judiciary to a greater extent (courts have final say over many rights)
Negatives of minimalist/maximalist constitution in Aus and USA
Aus- Legislation can diminish judges’ discretion to interpret the law
USA- HC has lots of power regarding rights that can’t be overturned by congress (Maximalist constitution)
Protections and threats of natural justice
Impartiality, fair hearing, evidence-based decisions, transparent processes
Trial issues in Australia
Deaf jurors are allowed in many other countries such as the US however not in Australia (except ACT), Trial was aborted after a juror was found in possession of material not presented in evidence
Supreme court politicisation
Conservative controlled court struck down Roe V Wade against the wishes of the Democratic President and 61% of Americans
Positives of fair hearings in Aus and USA
Aus- Section 80- right to trial by jury, Right to legal representation is implied, Legal rights upheld by international agreements, Alternative dispute resolution
USA- Legal aid provided by US Gov, Alternative dispute resolution, Bill of rights protects natural justice (4th, 5th, 6th, 7th and 8th)
Negatives of fair hearings in Aus and USA
Aus- Economic, social, educational, and geographical disadvantages, Lengthy trial processes, High incarceration of Indigenous Australians, No federal bill of rights
USA- Overreliance on litigation increases legal costs, Economic, social, educational, and geographical disadvantages, Lengthy trial processes, American Law Institute promotes better administration of justice and law reform, High incarceration of minorities (Indigenous Americans, African Americans), Death penalty, US is not signatory to international agreements
Positives of transparent processes in Aus and USA
Aus- Law reform commissions continually review trial and legal processes
USA- American law institute works in similar ways to law reform commissions, Constitutional rights increase awareness of natural justice, Open courts are protected by constitution (1980 HC ruled it was protected by 1st amendment)
Vasta being sued
Mr Stradford was awarded $300,000 in damages after being wrongfully jailed by Judge Salvatore Vasta
Democratic principles
Political representation, political participation, rule of law, judicial independence, natural justice
Negatives of impartiality protecting natural justice in Aus and USA
Aus- Juries aren’t always needed (In Vic, Pell had to have a jury (no jury in appeals), In WA you can request for no jury)
USA- election of judges
Positives of evidence-based decisions in Aus and USA
Aus- Claremont serial killer, justice hall released 619 page judgement, WA flexible juries, Strict evidence rules
USA- Strict evidence rules
Negatives of evidence-based decisions in Aus
Juries don’t give reasons for their judgement
Negatives of transparent processes protecting natural justice in Aus and USA
Aus- Closed courts for cases surrounding national security (open courts- common law), Witness K- don’t know who witnesses are
USA- Closed courts for cases surrounding national security
