EXAM Chapter 1,2,3,4,5,6,7,8,9 Flashcards
1
Q
What are the legislative institutions of government in Australia and the US?
A
Australia- democratically elected (s24,7), bicameral parliament (s1) composed of HOR, senate and queen.
United States- bicameral Congress (article 1, s1) composed of HOR (s2) and senate (s3)
2
Q
Define legislative power? ( in relation to laws)
A
Power to make statute law. This institution is elected by the people , represents them and exercises their sovereignty. Laws are passed by the people’s representatives.
3
Q
What are the executive institutions of government in Australia and the United States
A
Australia- government. Constitutional exec: queen +gg (s61) political exec: cabinet and outer ministry
United States- administration. President and Vice President (article 2)
4
Q
Define Executive power (in relation to law)
A
The branch of government which carries out the law and makes policy on how law will be implemented. It is created by Chapter 2 of the Constitution but mostly governed by Westminster Conventions. In Westminster system it is indirectly elected and formed in the directly elected lower House.
5
Q
What are the judicial institutions in Australia and the US?
A
Australia- The high court of Australia and all other courts as the parliament creates.
The United States- the Supreme Court and other inferior courts (article 3)
6
Q
Define checks and balances?
A
A system by which the powers of one arm or branch of government limits the powers of the other arms of government.
-Complementary to the doctrine of the separation of powers.
7
Q
Define separation of powers?
A
A doctrine by which the functions of government to make, carry out, interpret and enforce the laws are dispersed in order to prevent the concentration from power.
- First described by French aristocrat Montesquieu.
- a key feature of democracy
- completely to checks and balances
8
Q
Define constitutionalism?
A
The idea that power should be limited by a constitution. Democratic constitutions are founded on this idea. The opposite of absolutism.
9
Q
What are the 5 objectives of democratic constitutions?
A
- Specific geographic distribution of power (eg. Either unitary of federalism)
- Institutions of government with defined powers- parliament, executive government and other courts
- Procedures and processes of government, relationships between parliament, executive government and court
- Relationship between governing institutions and citizens IE. rights
- Mechanism of alteration contained
10
Q
Define representative government ?
A
A form of government in which the people are sovereign but are represented in government by an elected member of an assembly ( parliament) acting as their representatives. Such representatives may be delegates, trustees or partisan.
11
Q
Define constitutional monarchy?
A
A form of government in which the head of state is an inherited position but whose powers are limited by a written constitution or by unwritten constitutional conventions
12
Q
Define responsible parliamentary government?
A
The convention governing the formation of government in the Westminster system in which executive is drawn from and responsible to parliament.
RPG ensues that…
- government must be accountable to and drawn from executive
- members of exec must be members of legislature
- the government must resign if it loses a motion of no confidence in lower house
- if a minister loses a vote of no confidence they are expected to resign
- ministers are accountable to parliament for departments under their control
Governor General must act on advice of the PM
13
Q
Differences between HOR and senate?
A
- two houses have same law making powers except the senate cannot initiate or amend money bills. (S53)
- senators have 6 year terms (s13), members of HOR serve 3 year terms (s28)
- size 150 vs
14
Q
Define parliamentary sovereignty?
A
- The concept that the parliament is the representation of the sovereignty of the people. It is the principle upon which parliamentarianism is based.
15
Q
Define heads of power?
A
Specifically codified and enumerated legislative and financial powers allocated to either the commonwealth parliament (exclusively) or to the commonwealth parliament and the state parliaments (concurrently ) by the constitution. The way the constitution defines, and therefore limits, powers of government.
16
Q
Significance of s64?
A
mentions that ministers must be members of parliament?📖
….
17
Q
Define constitutional executive?
A
Queen, GG
18
Q
Define political executive?
A
Pm, cabinet and wider ministry (political executive)
-RESP P GOV not mentioned in the constitution
…
19
Q
Define jurisdiction?
A
‘Where the law speaks’,…
20
Q
Define original jurisdiction?
A
Original- the types of cases or areas of law which a court has the power to Hear ‘ in the first instance’, the high courts original jurisdiction is specified in s75 of the constitution. Parliament may add additional original jurisdiction under s76
21
Q
Define republic?
A
A form of government in which the head of state is a president
22
Q
Similarities between Aus and us legislature?
A
- bicameral upper and lower house ‘ppls house and states house’
- houses relatively same law making powers however senate cannot initiate or amend money bills
- both directly elected by the ppl
23
Q
Differences between Aus and us legislative?
A
- Australian parliament contains the executive and US Congress does not
24
Q
Similarities between Aus and us executive ?
A
- elected executive
- appoints justices of hc
- commander in chief of armed forces
- issuing writs of Election
power to select government ministers
25
Differences between Aus and us executive ?
- responsible parliamentary gov vs executive presidential gov
- parliament is drawn from and accountable to parliament vs In US directly elected President and Vice President
- distinct SOP of exec and leg in US vs fusion in Aus
26
Similarities between Aus and us judiciary ?
- independent
- constitutional court at apex of hierarchy
- acts as check and balance on other 2 arms
both interpret c
- highest court of appeal
- deals with issues between states
- both set out in 3rd chapter/ article
27
Differences between Aus and us judiciary ?
No way for congress to remove judges
...
28
Checks and balances on Aus legislature?
- GG has power to give and technically deny royal assent (s?)
-the high court reviews legislation for lawfulness (s?)
-
29
Checks and balances on us legislature (congress) ?
- president can veto a bill, (article 1, s7)
E.g. Obama vetoing S2040 – justice against sponsors of terrorist attacks (2016)
-Supreme Court can deem laws unconstitutional and review laws passed by congress
E.g. Trump’s immigration ban
30
Checks and balances on Aus executive ?
-RPG
-Vote of no confidence can remove gov
As must have majority of seats to form gov
- GG can remove pm
- high court checks legality of government policy
31
Checks and balances on US executive ?
- congress can override veto( If 2/3 disagrees with veto, bill still becomes a law)
- exec cannot b member of legislative
- pres can be impeached by congress
E.g. Bill Clinton (despite the fact that he was acquitted)
- treaties must be ratified by congress
- Supreme Court checks presidents powers
32
Checks and balances on Aus judiciary ?
- S72 judges can be removed by parliament on the ground of proved misconduct and incapacity
- s72 guaranteed tenure
- Gg appoints justices on advice of pm
33
Checks and balances on US judiciary?
Judiciary not really limited by legislative???
???
........
34
What are the functions of parliament?
Representative- represent the ppl of a nation
Legislative- make statute law, both money and non money acts
Responsibility- hold the executive gov to account
Debate- is premier forum for discussion of issues
35
Define the commonwealth parliament structurally?
A washminster hybrid as it adopts features from us Washington system and uk Westminster system. It has a lower house (HOR) modelled on the British House of Commons and a senate modelled like the us senate. Consequently, gives parliament a ‘responsibility function’ with no equivalent in US Congress.
36
What does s 7 do?
Established the senate as states house with equal representation for each original state, surreally 12 senators each, with territories having 2 senator each
requires the senate be ‘directly chosen by the people’ thus democracy
37
What does s24 do?
- requires the HOR to be ‘directly chosen by the people’ and is thus democratic
- requires the House to be twice the size of the senate ( nexus clause)
limits original states to have no less than 5 members in the HOR- (tas only has pop for 3; wa had 16)
38
What does s51 do?
Contains a list of legislative commonwealth concurrent heads of power under which parliament can make legislation, but not an exhaustive list as other powers are located elsewhere in the constitution.
39
What does s 53 do?
- Imposes a limit on the senates power to legislate money bills but otherwise states that the senate has equal powers to the house
- removes possiblity of rival governments
40
Define exclusive powers?
Powers granted by the Constitution to the Commonwealth Parliament alone. They may be legislative or financial powers. Eg s52
41
Concurrent powers?
Concurrent Powers
Powers granted by the Constitution to the Commonwealth and State Parliaments. They are shared powers. Predominantly in s52
42
What does s109 do?
Contains mechanisms for resolving conflicting legislation if the commonwealth and a state/s pass inconsistent laws under these shared powers
43
Residual powers?
All government legislative powers not specified or enumerated in the Constitution That are exercised by the States.
Eg. Interstate trade and commerce, civil and criminal law, electricity supplies etc.
S107 Preserves the states powers ( that that haven’t been exclusively granted to the commonwealth parliament )
44
What does s106 do?
Reserve state constitutions
45
S108?
Preserve the states laws
46
What are powers that are exclusive by nature?
Concurrent powers which are appropriate only for the Commonwealth to exercise despite the Constitution not making them exclusive. Eg. s51 (vi) defence power
47
Define malaproptionment!
This is where the number of electors in an electoral division are not approximately equal. It can be defined as the opposite of 'one vote, one value.' The Australian Senate suffers from this.
48
What does Australia adopt from the US?
- written federal constitution
- upper ‘house of states’ ( the senate)
- strong bicameralism- powers equal
49
What does Australia adopt from the UK?
- constitutional monarchy with queen incorporated into the parliament
- lower house of government (HOR) formed by whoever commands majority
- responsible parliamentary government operating under unwritten constitutional conventions
50
What does s1 do?
State that legislative power is vested in federal parliament including the queen, senate and HOR
51
What does s13 do?
Sets the term for senators which is.....
52
In theory how is parliaments representation function upheld?
Reflection of the will of the people
- s7 and s24 ‘directly chosen by the ppl’
- delegate and trustee representation theory’s
Mps are expected to talk to ppl and take their issues to parliament
53
In practice how is parliaments representation function upheld?
- Reflection of will of majority is mainly partisan due to political party dominance, with ppl voting for leaders instead of local reps. Eg Kevin 07 campaign
- though their expected t talk to ppl, they can’t talk to every single individual
- s7 & s24 still operate in practice
- senate is also very diverse due to STV system that influences a voters ability to direct their votes/ preferences better than previously & makes it easier for minor parties to be elected
54
In theory how is parliaments legislative function upheld?
```
Legislative function is power to initiate, a,end pass and repeal legislation. S51,s53,s52
in theory are to make laws that are...
- scrutinised by statutory process
-have diversity of input
-can be initiated by any MP
- follows statutory process
```
55
In practice how is parliaments legislative function upheld?
- parliament is efficient Eg. 2013 Gillard government passed 139 bills and government is often able to act quick in crisis Eg. July 2016 Emergency amendments to migration act by abbot gov
- ability for bills to be scrutinised and debated with variety of input is limited by gagging the second reading debate, guillotining debate and floodgating bills. (Exec dominance allows this)
- PMB rarely passed Eg. 2015 SSM bill shorten bill
lack of exec dominance in senate creates more diversity of input and makes it
56
In theory how is parliaments Responsiblity function upheld?
- exec drawn from and accountable to leg
Gov only exists with support if House. Are expected to resign if motion of no C passed, No C votes hold gov to account and allow mechanism for exec dismissal (CMR)
- individual ministers can also be dismissed by C motions (IMR)
- question time holds exec accountable
- expenditure must be approved each yea by both houses (scrutiny)
57
In practice how is parliaments responsibility function upheld?
- gov has majority in HOR+ dominance of party discipline = unlikely for motion of no C to pass.
- C motions unlikely to pass in HOR. In senate more likely but lack of weight of Westminster convention = ministers don’t resign Eg, George brands in March 2015 was Censured by the Senate but Did not resign and Did not have to resign
- question time occurs each sitting day. A without and with notice = ACCOUNTABILITY
- exec hold man in HOR so budget will pass. S53 senate can not initiate or amend,
Eg. senate can technically reject tho Eg. 1975 crisis
Eg. ABCC bill deadlock = DD election resolution
58
In theory how is parliaments debate function upheld?
- second reading
- debate
- question time
- consideration in detail
- committee system
59
Why is parliaments representative function in decline?
- party disciple and loyalty forces parliament to be more partisan than delegate or trustee for constitutes
majoritarian electoral system eliminates community diversity ( because 2 party system) being reflected in the ‘house of the the people’ and ‘house of government’
60
Why is the parliaments legislative function in decline?
- dominance of political executive in HOR prevents PMB from non governing parties being introduced, debated and passed
- dominance of political executive in HOR virtually guarantees passage of government initiated legislation and enables it to floodgate bills as well as gag and guillotine legislative debate.
61
Why is the parliaments responsibility function in decline?
- executive dominance in HOR in times of majority gov = no accountability
- ability for political exec to pass standing orders and rules around question time ( favour their own party)
- RPG undermined by executive dominance = unlikely for motions of no C to pass + C motions can’t remove senators
62
Why is the parliaments debate function in decline?
- The ability of the executive to gag and guillotine debates through its control of standing orders.
- A majoritarian electoral system that creates a lack of diversity in the HOR results in a deficiency of views being expressed.
63
Elements of good government
```
Accountable
Transparent
Follows the rule of law
Responsive
Equitable and inclusive
Effective and efficient
```
64
How does the commonwealth parliament deliver good government through accountability?
- despite exec dominance house may asked questions of ministers that they must answer truthfully to
- despite Gags and guilltines and other govt tactics the house can still highlight major issues with leg and conduct debate
- exec usually doesn’t control senate which ensures a BOP holding govt accountable flooding diversity of inputs and views
-senate has power to reject bills from the house to propose amendments of bills and initiate its own bills (esp s53) they can also disallow regulations
Eg.2014 senate held Abbott govt accountable for not passing promised parts of budget bills
65
How does the commonwealth parliament deliver good government through transparency?
- cabinet scrutinised and other parties within parliament ( eg, questioning, committees + parliamentary procedures)
- senate committee x2 yearly estimates hearings into affairs of exec
gov must explain itself to its own part
66
How does the commonwealth parliament deliver good government through following rule of law?
- constitution and acts bind executive
| HC can define exec power
67
How does the commonwealth parliament deliver good government by being responsive?
- short election cycle of of 3 years keeping government responsive
- exec responds to community concerns raised by party members
-debates and questions raised by non gov members
- gov sometimes must negotiate and accept senate amendments to bills. ( responsive to community concerns reflected through the senate)
minority governments more responsive to proposals of minorities and other parties
68
How does the commonwealth parliament deliver good government by being equitable and inclusive ?
- HOR and senate representatives of a broad range of community interests and opinions
parliamentary joint committee on human rights scrutinised bills for human rights compliance
69
How does the commonwealth parliament deliver good government by being effective and efficient?
- executive usually majority gov (exec dominance) meaning generally stable and unlikely to fall to votes of no confidence
preferential voting delivers clear majorities
70
Define the term partisan representation?
A practical form of representation in which the elected representative is a member of a political party. Dominant form of representation in contemporary Australian politics. Parts of Australian representative function.
71
Elements of good government?
Accountable
- Transparent
- Follows rule of law
- Responsive
- Equitable and Inclusive
- Effective and efficient
72
Define delegate representation?
Theoretical form of representation where elected representatives simply reflect their electors concerns and values in parliament. The representative is simply a ‘mouthpiece’. Part of the parliaments ‘representative function’.
73
Define gag?
A motion passed in a House of Parliament to curtail further debate; During the Second Reading Debate on a Bill the government may use one of its members (backbencher or minister) to move a motion that the bill be put to a vote. The effect is to prevent further debate.
74
Define guilltine?
Guillotine
A motion passed in a house of parliament to impose a time limit on a debate; Before debate commences on a bill the government may move a motion that the time allocated to debate be set to a certain time limit.
75
Define floodgate?
Flood-gating Bills
The strategy of introducing a high number of legislation into the parliament with the aim of passing bills with minimum scrutiny or debate or to apply pressure to non-government MPs
76
Who appoints the Governor General?
(S2) the queen appoints however since 1930s appointment has been made under consultation with the PM.
Currently the gg is sir Peter cos grove
77
What is circular accountability?
A situation where 2 parties each hold each their to account. The pm and the gg each hold the power to dismiss the other.
78
What is the tenure of the gg?
The gg holds tenure ‘at the pleasure’ of the queen, tho average length of appointment is around 5 years.
79
What are the types of roles of the Governor General?
Constitutional
Ceremonial
Non ceremonial
80
Define constitutional role (of gg)?
To exercise those that are vested in the office through the constitution. can be classified as either legislative or executive.
81
What are some of the legislative powers of the Governor General?
- Proclaimation of a parliamentary session within thirty days after an election (s5)
- proroguing or suspending parliament between sessions and dissolving the HOR after an election (s5)
GG exercised s5 power on advice of PM Turnbull on 18th of April for DD election.
82
What are some of the executive powers of the Governor General?
(S62) - elect and appoint EXCO
(S63)- gg is to act on advice of EXCO
(s64)- appointment and dismissal of ministers
(S67)- appointment of senior government officials
83
Outline s64?
States that 'The Governor-General may appoint officers to administer such departments of the State of the Commonwealth as the Governor-General in Council may establish. These appointed officers may hold office during the pleasure of the Governor-General. These ministers shall be members of the Federal Executive Council (Comprised of GG, PM and other Ministers of State) and shall be the Queen's Ministers of State for the Commonwealth.
After the first general election no Minister of State shall hold office for a longer period than three months unless he or she is becoming a senator or a member of the House of Reps.'
84
Powers of the Governor-General
Express and reserve powers
85
What does s61 do?
Executive power is vested in the Queen and is exercisable by the Governor-General.
86
Ceremonial role of the Governor General ?
- To represent the Australian nation during Anzac Day ceremonies
- Receiving and entertaining visiting Heads of State
- Opening new sessions of Parliament
- Receiving the credentials of foreign diplomats
- Conducting investitures at which people receive Awards under the Australian honours system
87
Non ceremonial role of the Governor General?
- Travel widely to meet people
- Accept patronage of various charitable organisations
- Attending services and functions
- Speaking at conferences
- Presenting awards at major public functions
88
Significance/ importance of s64?
- This section gives the GG major powers to appoint and dismiss government Ministers and the PM. (1975 Crisis)
- This section provides for the exercise of power by the GG as advised by an executive (s63- powers of the GG are restricted as GG is required to act in council).
- It stipulates that Ministers are members of parliament - ratifies Ministers and their roles
- Only section of the constitution to refer to responsible government.
89
Define express powers?
Constitutional powers of the GG that by convention are exercised on behalf of the parliament. When the GG is simply 'expressing the will of parliament'
90
Define reserve powers?
Constitutional powers of GG that may be exercised, in certain circumstances, by the GG's own initiative.
91
Examples of Express Powers
- Appointing federal judges (s72)
- Granting royal assent (s58)
- Issuing writs for a general election (s32)
- Double dissolution (s57)
- Dissolving HOR (s28)
92
Examples of Reserve Powers
- Appoint a Minister if an election has resulted in a hung parliament (s64)
- Dismiss a PM where they have lost the confidence of the parliament (s64)
- Dismiss a PM if they are acting unlawfully (s64)
- Refuse to dissolve the HOR despite a request from the PM (s5 & s28)
93
Impact of 1975 crisis?
```
Whitlam budget fails to pass
● Whitlam requests a half senate
election
● G.G meets with C.J Garfield Barwick
and requests advice on use of reserve
powers
● G.G refuses half senate election
● G.G Sir John Kerr used his reserve
powers under s64 to dismiss PM Gough Whitlam
```
Caused many to question the appropriate role of convention in the Australian system, the exercise of power by the GG and whether or not the role of the GG should exist.
94
Define Westminster conventions?
Unwritten constitutional rules that govern the practice of government in systems derived from the British Westminster system. On convention is that the government is formed by the party which has the majority in the House of Representatives.
95
What does s28 do?
Sets 3 year maximum term for HOR
| Gg can dissolve HOR
96
Components of ‘real’ executive?
PM, Cabinet, junior and assistant,ministers
97
Define prime minister
The head of the federal executive (The government). The leader of the majority in the HOR and the leader of the party forming government. Position is entirely governed by convention. Commissioned under s64.
98
Define ministers?
A member of the executive arm of Government. Ministers have responsibility for a particular area of government activity such as health, or education which are referred to as a 'portfolio'. s64 requires Ministers to be members of parliament.
99
Role of minister?
- To manage a portfolio: This means they are responsible for a department of the public service.
- To participate in Cabinet meetings and deliberations of policy development, plan political strategy, deal with crises and help maintain the narrative of the Government.
- Publicly support Cabinet decisions, even when they disagree with them
Answer to parliament under the conventions of individual ministerial responsibility for personal probity, political integrity and management of portfolio
100
Define cabinet
A committee of the executive comprising the Prime Minister and Senior Ministers. I is entirely governed by convention and has no legal or constitutional authority. Despite this, it is the most powerful institution in the system of government.
Formally appointed by GG under s64 but ‘really’ chosen by PM
101
Define cabinet secrecy?
A Westminster Convention that the deliberations and discussions of cabinet should be out of public view. It allows robust and frank discussion within cabinet. It also allows cabinet to reach a single position and present a united government.
102
Define cabinet solidarity?
A Westminster Convention that the Cabinet presents a united government. All ministers are bound by the convention to publicly support the cabinet's position on all issues. If a minister cannot publicly support cabinet they are required, by convention, to resign.
Eg. Barnaby Joyce Minister of agriculture’s failure to support cabinets granting of permission for Shenhua coal mine
103
Role of Cabinet
- To develop and communicate the narrative vision of government
- To develop and implement policies
- To coordinate the machinery of government
To act as an information exchange
- respond to crisis
Eg. 2004 Boxing Day Tsunami, 2015 Lindt Cafe siege and 2008 Global Financial Crisis Cabinet had to decide how to respond
104
Where is formal constitutional executive power vested?
Created by s61. Vests executive power in the Queen and, the Governor-General.
105
What are cabinet committees ?
Subdivisions of groups of ministers for the purpose os focusing on specific areas of gov activity eg, Abbott cabinet has national security committee focused on major international security issues of importance in Australia
106
What section establishes exco
S62 establishes EXCO. However it is west minister convention that the PM and ministers are given power
107
Roles of PM?
- Key spokesperson for Australia
- Head of Cabinet
- Leader of the Government
- Governed by constitutional convention
108
What is an assistant minister?
A junior executive ministerial position.
- not permanent members of cabinet
- belong to outer ministry
hold portfolios in less important gov activity and are there to assist senior ministers
109
Powers of pm
- Being responsible for the membership of the Cabinet and Cabinet committees, determines and regulates all Cabinet arrangements. And Advising GG on the appointment of ministers (including allocating portfolios) and determines which ministers will form Cabinet.
Eg. Gillard (2010) appointed Rudd to the portfolio to try placate him after being rolled as PM
- Assists with the appointments of Judges, diplomats and public servants
As chair of the Cabinet, the PM leads and guides discussion to achieve a collective response (PM has finally authority)
110
Powers of ministers
To administer a portfolio
111
Argument for cabinet secrecy
- Government must. speak with one coherent voice
- Secrecy creates a safe space for Ministers to present their best arguments without fear of media retaliation
Process enables Cabinet to come to its best decision
112
Components of executive
Executive branch includes the Queen, the Governor-General, the Prime Minister and Cabinet and the wider Ministry. Includes public service and agencies tasked with the day-to-day implementation of the laws.
113
Methods of reaching a decision in cabinet
- Consensus (all members agree)
- Majority (most members agree)
- PM authority (PM, as leader of the government, imposes his will on the Cabinet)
Party Room pressure (the wiser governing party's parliamentary members apply pressure to their own senior members or leader to obtain a decision they prefer
114
What is a backbencher?
A member of parliament who is not in cabinet or the ministry (the gov front bench), or a member of the opposition shadow front bench.
115
What is a frontbencher ?
The term used to describe the government ministers and the opposition shadow ministry. They occupy the front benches on either side of the central table in the HOR and Senate.
116
Sources of pm power?
- Being the leader of the majority party in the HOR
- Being the chairperson of Cabinet meetings
- Access to information
- Patronage
- Determining the election date
Being the public face of government
117
Limitations of PM power?
- Not having a personal mandate
- Lack of solidarity and unity in Cabinet
Eg. Tony’s “Leaky” Cabinet (2013)
- Having rivals within Cabinet or the Parliamentary Party
- The constraints imposed by their own party
- The constraints imposed by a coalition party
- Federalism
- The size and nature of the House majority
- Negative media and polling
Minority Government
118
Define Westminster chain of accountability
Westminster Chain of Accountability is the links between the people and those who execute the laws that govern them.
119
Links of Westminster chain of accountability?
1. People directly elect a Parliament in a general election
2. The HOR chooses a government who then form Cabinet (government technically indirectly elected)
3. These Cabinet ministers head their appointed governments and provide policy direction
4. Government departments implement policy under their Minister's direction and provide advice to the Minister
5. The Parliament, representing the people, holds the Ministers accountable for their administration of government
120
Factors affecting the functioning of the cabinet?
- Personality and leadership style of the Prime Minister
- Relationships between Ministers
- Timing
- Nature of the Cabinet
121
Define mirror representation?
An ideal form of representation in which the composition of Parliament (or at least one House) accurately reflects the diversity of the electorate in age, gender, and other social and economic characteristics.
122
Define Collective Ministerial Responsibility
A Westminster convention of responsible parliamentary government by which an entire executive government may be held to account by the house of representatives. Part of parliament's responsibility function.
123
Define Individual Ministerial Responsibility
A Westminster Convention of responsible parliamentary government by which a minister may be held to account by the House of Representatives. Part of the parliaments responsibility function.
Eg. Barnaby Joyce Baby Scandal, 2018
-Stood on a marriage sanctity platform but Cheated on his wife with a staffer and also gave her a raise= Resigned as Deputy PM and Leader of
the Nationals
124
What is question time?
-It is a session in each sitting day during which Private Members may ask 'Questions with notice' or 'Questions without notice' to the relevant ministers concerning their portfolio area, their conduct or other matters related to how they carry out their role.
(In both 44th and 43rd parliament over 4000 questions were asked)
-its associated with the responsibility role of the parliament, occurs at 2pm every parliamentary sitting day.
-In reality Question Time has has become little more than a contest for political advantage.
125
Arguments for decline of parliament?
- Executive dominance is clearly a defining and limiting characteristic of the Australian system of parliamentary government.
- None of the theoretical functions of the Commonwealth Parliament operate properly 'in reality'
- Compared to Britain's parliament, the Commonwealth parliament fails to live up to historical and contemporary Westminster Parliamentary ideals
126
Arguments against decline of parliament?
- The dominance of the political executive deriving from the disciplined party system, in proposing and selecting bills for introduction into the HOR. This prevents PMBs from being introduced.
- The dominance of the political executive in the HOR and its committees virtually guarantees the passage of government initiate legislation and enables it to use gags and guillotine debates.
127
Define parliamentary privilege?
An enhanced form of freedom of speech enjoyed by all members of parliament when they are on the floor of their chamber and their chamber is in session. It protects members of Parliament from civil or criminal liability for comments they make in Parliament.
128
How is cabinet a responsible government?
s64 requires ministers to be member of parliament (or become members within three months). This stipulation ensures that ministers are drawn from and accountable to parliament.
129
Define Opposition
The party with the second largest number of seats in the HOR. Opposition in a Westminster system is the alternative government. Its role is to hold government to account and be ready to form government itself.
130
Define Shadow ministry
The opposition front bench composed of spokespersons for each of the ministerial portfolios of the government. Each spokesperson scrutinises a government minister. They are alternative government.
131
Define Leader of the Opposition
Leader of the party with the second largest number of seats in the House of representatives (Bill Shorten)
132
Define Private Members
All members of Parliament who do not form part of the Ministry (Executive). This includes the Shadow Ministry and government backbenchers.
133
Roles of the Opposition
Its role is to oppose, and therefore check and scrutinise the power of the current government. It is also expected to act as a viable alternative government.
134
Opposition Methods to Hold Government accountable
- Question time
- Moving censure motions and motions of no-confidence
- Debate
- Calling for quorum
- Refusing pairs
- Calling for divisions
- Good opposition
- Media
135
What is a censure motion?
A motion to discipline a minister or the government. A successful censure motion in the HOR would, by the conventions of individual or collective ministerial responsibility, require a minister or government to resign.
In reality they are almost always defeated on party lines. However, they offer the opposition the chance to debate
136
What is a Motion of No-Confidence
A motion by which the HOR withdraws its support from the government. A successful motion of no-confidence would, by the convention of collective ministerial responsibility, require a minister or government to resign.
137
Forms of no-confidence motions
- A direct vote against the government
- The defeat of a core government bill in the House
- The defeat of a government money bill in the House
- A loss of government control of the business of the House
138
What is a Quorum
The minimum number of Members of Parliament required in the House (or Senate) for a valid vote to be taken. The law specifies that the quorum for the HOR is 1/5 of total members (currently 30)
Opposition can frustrate business of government by making the Speaker aware of the limited MPS in the House causes the sitting to be adjourned until a quorum is reached.
139
What are Pairs?
A convention by which the Opposition withdraws one of its own members of the House or Senate to match each government MP who is absent for other business or ill.
As a convention it can be broken by the Opposition if it wishes to frustrate the government by forcing it to all call its MPs back for a vote.
140
What is a Division?
A formal vote in either House of Parliament. Members move to one side of the chamber or the other to vote in favour for or against a motion. Members may cross the floor to vote with another party.
If the Opposition wishes to frustrate the government, they may call for a division. It contributes to minister accountability.
141
Factors affecting the success of an opposition
- Impartiality of the speaker
- Lack of resources
- Executive dominance
142
How does the opposition attempt to Overcome the limits?
- Third party research
| - Reforms
143
How does the opposition act as a viable alternative to government?
- being prepared by having its own policies, presenting a unified coherent vision to the nation and presenting as competent and ready to govern.
- have their own shadow ministry, party room and platform
144
Define mandate?
A claim to power. A claim to the legitimate exercise of power. In a democratic system such as Australia, the only legitimate claim to power is that which derived from the people (demos).
Those who win elections claim a political mandate.
145
What is popular sovereignty?
The right to govern rests with the people. Democracy is based on the idea of popular sovereignty.
146
Types of mandates
- Will of the majority mandate
- Balance of power mandate
- Right to oppose
147
Define Will of the Majority Mandate
Claimed by governments when they win an election. They claim that the people have delegated their sovereignty to the government and it should be able to implement its specific policies and laws in line with its general ideology.
148
Define Right to Oppose mandate
Westminster theory, in which a government is loyal to the system of government but opposes the actual government in power, legitimises the role of the Opposition and provides it with a mandate to oppose government.
If a government is a minority government then the opposition will feel that the government lacks a clear mandate and will be inspired to exercise its 'right to oppose.'
149
Define Balance of Power Mandate
Claimed by the parties or or independents with the balance of power in either House of Parliament, but usually the Senate. The justification for amending, passing or repealing bills in Parliament. An extraordinary power they may wield because the Senate is such a powerful chamber.
Eg. Tim storer, SA independent in Senate,
- Only secured 189 votes
- Blocked Company Tax Cuts
150
Define Specific Mandate
A claim by a governing party to have authority to implement policies and promises that were specifically part of of an election campaign. They are the most successful claims to a mandate.
151
Define General Mandate
A claim by a governing party to have authority to implement policies that reflect its ideology. They are a much less successful form of mandate.
152
Arguments in favour of the balance of power mandate
- Section 7 means State voters directly elect the senate giving it a democratic mandate
- Dual voting gives the minor parties and independents the ability to argue that it expresses a democratic intention to hold the government accountable through the senate
153
Arguments against the balance of power mandate
- Malapportionment in the Senate
| - Group ticket voting in the Senate
154
Purposes of Chapter 3
- Creates the federal judiciary and vests the 'judicial power' of the Commonwealth in the High Court
- It specifies and exclusive power for the Parliament allowing it to create new federal courts
- It establishes the independence of the judiciary by protecting it from the other arms of the government.
- It defines judicial powers
- It provides constitutional protection for one of the few rights actually specified in the constitution
155
Sources of Judicial Authority
- The Constitution
- The Judiciary Act 1903
- The Common law
- Long established norms and maxims that govern how judicial decisions are made (stare decisis, doctrine of precedent and natural justice)
- Accountability through appeals
- Tradition and heritage
156
What does s71 do?
: Creating a federal judiciary
- Creates the High Court of Australia
- Allows for the creation of a federal court hierarchy
- Permits cross-vesting of judicial power
157
What does s72 do?
:Guarantees judicial independence
- The executive appoints, but only the Parliament may remove judges on the grounds of proven misconduct or incapacity
- The executive cannot reduce judges' pay
- Makes it compulsory for judges over 70 to retire
158
Define appellate jurisdiction?
Appellate- The type of cases or areas of law which a court has the power to hear 'on appeal' from another court. Original decisions can be reviewed and reversed if found to be wrong. Judges and courts are held to account through appeals.
s73 vests appellate jurisdiction in the High Court
159
What does s73 do?
Appellate jurisdiction of the High Court
- It grants the power to hear appeals on all civil and criminal matters arising from the lower courts throughout all state and territory hierarchies.
- Grants Parliament the power to determine which appeals the High Court may hear.
160
What is Special leave to appeal
The process by which an appellant applies to have their appeal heard in the High Court. Appeals are not automatically granted. The High Court only grants leave to appeal if it considers a miscarriage of justice has occurred or if the case presents the opportunity for new common law to be made.
161
What does s75 do?
: Original Jurisdiction
- Matters concerning treaties with other countries or international organisations such as the UN
- Cases involving the States or Commonwealth as parties
- Grants the HC jurisdiction to adjudicate writs of Mandamus, prohibitions or injunctions
162
What are Writs of Mandamus?
A court order requiring a public official to carry out a particular action. Part of judicial review and the accountability of the executive. A court cannot order an official to do anything that is not lawful. An executive accountability role of the courts.
163
What does s76 do?
: Original jurisdiction
| High Court has original jurisdiction in constitutional matters and marine law.
164
Roles of the High Court
- To interpret and apply the law, they may hear disputes arising from interpretation of the constitution (s76) and with laws made by commonwealth
- To determine constitutional cases Eg. Williams no.2
- appellate role (s73) high court judgement is final and can only be changed by a subsequent high court decision or successful constitutional referendum Eg. Retirement of judges (1977)
165
What does s74 do?
High Court is the highest court of appeal. 1986 Australia Acts ended the ability of Australians to appeal to the Privy Council in England.
166
What are Constitutional Cases?
- Involve interpreting the meaning of the words in the Constitution
- Involve disputes arising concerning the legislative powers allocated to the Commonwealth and the States
167
Three form of High Court interpretation cases
- Interpretations which define legislative powers
- Interpretations which define executive powers
- Interpretations which discover implications within the constitution
168
What are Common Law cases
Common law is created by appellate courts. It can create new common law when it:
- Reverses a case on appeal
- Interprets statute laws in new ways and declares the law
- overrules the existing precedent
169
Factors affecting the roles and power of the High Court
- How judges decide cases
| - The freedom of judges to use judicial discretion
170
Define Judicial Discretion
The freedom of a judge to decide an appropriate outcome for a particular case within the bounds of the law. It is important for adjudication and the exercise of judicial power. It is a component of judicial independence and therefore also the rule of law. It can be limited by parliament tightening the bounds of the law, as in mandatory sentencing laws. Such limits can be seen as controversial intrusions on judicial independence.
171
What is Judicial power?
The power to adjudicate. To make decisions that have the force of the law. To make legally binding decisions. The power exercised by the courts.
172
What is Judicial independence
The judiciary must be kept completely free from interference and influence from the parliament of the government or any other institution or person.
173
What is Judicial Legalism
The strict use of customary and traditional legal rules and maxims of interpretation are applied. The narrow legal aspects of the case are examined without reference to broad community concerns or evolving social and cultural norms.
174
What is Judicial Activism
- The purpose and intention of the law is as important as the actual words.
- There may be implications found in laws that may not have been specifically expressed by the law itself
- The broader social impact of the interpretation is a valid consideration
175
Examples of original jurisdiction?
...
176
Example of appellate jurisdiction?
...
177
Laws are found where?
- Constitutions (Superior or fundamental law)
- Legislation (Statute law)
- Judicial decisions (Precedents)
- Regulations and ordinances (delegated legislation)
178
What is Superior Law
Law located in constitutions
179
What is ordinary law?
The law making institutions established by the constitution make ordinary law. Includes statute law and common law.
180
What are Statutes?
They are acts of parliament. They are made by the statutory process - a set of conventions which outline the way the Parliament introduces, debates and amends Bills to pass acts.
181
Types of Statutes
- Policy legislation
- Financial legislation
- Amending legislation
- Consolidating legislation
- Repealing legislation
182
What is Policy legislation
These Acts implement an executive governments programme of policy.
183
What is Financial legislation
These are the laws that authorise the raising of taxes and the spending of government money.
184
What is Amending legislation
Laws may be passed which alter existing statutes.
185
What is Consolidating legislation
Repeals existing Acts and then re-enacts their provisions, incorporating all amendments into a single Act.
186
What is repealing legislation
Acts whose whole purpose is to abolish existing Acts.
187
Characteristics of Parliament
- Being democratic: No other institution is directly elected by the people (s7 & 24)
- Being sovereign: Parliamentary sovereignty is the principle that the parliament is the final authority on all law
- Being superior to other law making institutions, including the courts and executive agencies' regulations
- Being flexible responsive and proactive: Statute law is general and future directed.
188
Characteristics of the Courts
- Being authoritative: courts rely on deeply entrenched legal maxims and norms. Hierarchy of courts reinforces this tendency
- Being apolitical and independent: Courts tend to respect the separation of powers and interpret statute and common law literally and legalistically.
- Being inferior: The principle of 'rule of law' applies to courts and judges. Parliament may abrogate common law
- Being incremental and reactive: Law made by courts develops case by case and after the facts which gave rise to a new precedent (ex post facto)
189
What is an Individual
An Australian resident or citizen in the community who doesn't exercise any direct control over parliament or the courts. Independent MPs can also be considered as individuals.
190
Reasons why individuals are not influential in law making
- They lack resources (money or time)
- They lack access to the key decision makers such as government Ministers
- They lack organisational support. they are on their own.
191
Reasons why individuals may be able to influence lawmaking
- The individual has resources (e.g.. Clive Palmer)
- The individual is an independent or has a position of power within the Parliament (eg. Andrew Wilkie, Tony Windsor etc)
- The individual has skills and/or backing from a pressure group (E.g Davis Manne)
- The individual has a public profile (eg. Antony Green)
192
What is a Political party
Associations of individuals with broadly similar ideological views that tend to have a broad focus and seek to win seats in Parliament with the express purpose of influencing legislation
193
Methods political parties use to influence lawmaking
- Winning government (major parties)
- By forming coalitions with a major party
- Exercising influence over the passage of legislation through holding the balance of power in the senate
- By engaging in preference deals with other parties prior to elections in return for influence over their policies
194
What is a Major party?
A political party capable of winning enough seats to form government in its own right, or in coalition with a minor party during an election
Eg. Liberal party of Australia and the Australian Labour Party
195
What is a Minor party
A political party capable of winning seats in the Parliament but not capable of forming government in its own right. Minor parties may seek coalition with other parties to form government or seek balance of power in the senate.
196
What is a Micro party?
A political party which may win a seat or only a few seats in parliament. They may not survive for more than one or a few successive years in parliament. They may hold the balance of power in the senate
197
What are Specific Purpose Payments
Monetary grants that are given to States and Territories by the Commonwealth under section 96 which must be used on the terms and conditions laid down by the Commonwealth. Tied grants.
198
What are General Purpose Payments
Grants made from the Commonwealth to the States under s96 of the Constitution. No condition are attached and it is up to the states to sped as they think fit. Eg. GST
199
What is Cooperative Federalism
A federal system in which the two levels of government work together to achieve outcomes. It requires strong institutions of federalism where the two levels come together to cooperate.
Eg. Family Court referrals
All states but WA signed agreement to make defacto child law in Family Courts the same
Now all Family courts are the same
200
What is Coordinate Federalism
A federal system in which the two levels of government work independently within their own spheres of power. It requires only weak institutions of federalism where the two levels come together to coordinate their relatively autonomous operations.
201
What is Coercive Federalism
A federal system in which the central level of government possesses and exercises significantly more power than the regional governments. Australian federalism can be coercive when the Commonwealth uses its legislative and financial powers to direct state policy in areas of residual power.
Eg. Asset Recycling Scheme
Tied Grants (Incentive Payments)Ended in 2015
Encouraged state to sell infrastructure
E.g Western Power
202
Define Federalism
A system of government in which sovereignty is geographically divided between one central, and two or more regional governments, each sovereign within their own sphere. Australia is a federal system with federal, state and local levels of government.
203
Define Financial Powers
The power to levy taxes and raise and spend money. These include the power to make conditional grants to the States (s96).
204
What are Incentive Payments
A form of payment which is made after a State demonstrates compliance with Commonwealth requirements. Tied grant.
205
What is COAG
Council of Australian Governments. Includes the PM, State Premiers, Territory Chief Ministers and President of Local Government Administration. Was established in 1991 to improve cooperation between the commonwealth and the states. Since then, many cooperative policy arrangements have been established between governments Eg. National water agreement, and the October 2017 updated intergovernmental agreement on National terrorism arrangements and strengthened national counter terrorism plan
206
s51 (ii)?
Taxation power. Concurrent power.
207
s90
Customs, duties and excise power. exclusive power of the Commonwealth.
208
s96
Grants power. A mechanism to allow for the transfer of surplus revenue to the States 'as it thinks fit.' Tied or untied. Can erode the powers of the States.
209
s87
The 'Braddon Blot.' It required the Commonwealth to pay the States 75% of excise revenue it collects. This section had a time limit and 10 years after federation the Commonwealth stopped these payments and it became a spent section.
210
s94
Required the Commonwealth to distribute its surplus revenue in any way the 'Parliament deems far.' Parliament decided to pay its surplus revenue into a trust fund to cover future payments and therefore stopped payments to the states under this section. This is a redundant section.
211
s92
Trade between the States to be 'absolutely free.' A guarantee that no State can make laws that have the effect of creating a trade advantage to itself or a trade disadvantage to other states.
212
Four Institutions of Australian Federalism
The Constitution, The Commonwealth Grants Commission, COAG and The High Court
213
Define Vertical Fiscal Imbalance
The imbalance in the taxing powers and spending obligations between the two levels of government within a federation. VFI forced the States to accept grants, often tied grant, to meet their spending obligations.
214
Define Horizontal Fiscal Equalisation
The requirement that the Commonwealth Parliament use its financial powers to equalise the standard of public service delivery in each State. It requires that some poorer States receive high per capita grants from the Commonwealth than other wealthier States.
215
Federal Balance of Power
The balance of legislative and financial powers between the central and regional governments with a federation
216
Define Unchallenged Legislation
Unconstitutional laws that go unchallenged in the High Court. Until struck down by the High Court they remain active law. Statutes passed by the Commonwealth Parliament can be unconstitutional because the Parliament lacks a head of power within the constitution granting the power to make the law.
217
s51 (xxxvii)
Referral of powers. Allows individual States to pass residual powers to the Commonwealth.
Eg. 2002-2003 all states referred limited text based power regarding counter terrorism to the commonwealth to allow the enactment of criminal code amendment (terrorism) Act (2003)l
218
Doctrine of reserved powers
A doctrine of interpretation during the intentionalist phase of the High Court. It meant that when the High Court interpreted concurrent powers it did so in a narrow sense which preserved the powers of the States. Evident in Perterwald's Case 1904.
219
Doctrine of implied immunities of state instrumentalities
A doctrine of interpretation during the intentionalist phase of the High Court. It meant that, because the constitution was designed to create a federation, then it also implied that states powers should be preserved and therefore immune from Commonwealth interference in State's residual powers. Evident in Railway Servants Case 1906
220
Perterwald's Case 1904
Applying the doctrine of reserved powers, CJ Griffiths held that a NSW tax imposed on brewers was not an excise. Thus limiting Commonwealth power.
221
Railway Servants Case 1906
Applying the doctrine of implied immunities of state instrumentalities the High Court found that the Commonwealth Conciliation and Arbitration Act passed under s51(xxxv) could not apply to State government railway employees. Thus limiting Commonwealth power.
222
The Engineers Case 1920
A trade union was involved in an industrial dispute with a sawmilling company owned by the WA government (state instrumentality). The Commonwealth sought to legislate under s51(xxxv), to make law for state businesses when a dispute crossed borders. High Court overturned the doctrine of implied immunities of state instrumentalities by ruling that the Commonwealth had the right to legislate for state owned businesses when disputes crossed borders. Thus eroding State legislative powers.
223
The Uniform Tax Case 1942
Commonwealth imposed uniform income tax across Australian during WW2 with the plan to return surplus revenue to the States. These acts were deemed constitutional under s51(ii) and s96. States could raise an additional income tax but this would not have been a politically viable option. Thus contributing to VFI and eroding state financial powers.
224
'Covering the Field'
The High Court accepted that when legislating under a s51 concurrent 'head of power' the Commonwealth could specify within the wording of an Act that its law is 'intended to be the only law' in that field. s109 would then deem any State law, under that head of power, invalid. Thus increasing Commonwealth legislative power.
225
Residual Powers: Interpretation
These powers are unspecified in the Constitution and are therefore non-justiciable, and the High Court cannot defend them.
226
State Banking Case 1947
In this case the High Court struck down Commonwealth legislation which tried to force States to bank with Commonwealth Bank on the grounds that it discriminated against the States. Thus limiting Commonwealth power.
227
Bank Nationalisation Case 1948
In this case the ALP government's attempt to nationalise all banks on the grounds that it prevented freedom os interstate trade under s92 was struck down. This limiting Commonwealth power.
228
Communist Party Case 1951
In this case the Liberal Menzie's Government's attempt to ban the Communist Party was struck down. Thus limiting Commonwealth power.
229
Concrete Pipes Case 1971
In this case the right of the Commonwealth to legislate for the intrastate activities of corporations under s51(xx) was deemed constitutional. This case led to the passing of the Trade Practices Act which allowed the Commonwealth broad powers to legislate for the activities of corporations. Thus expanding Commonwealth Power.
230
Uniform Tax Case 1957
In this case the High Court upheld its 1947 decision and deemed the Commonwealth income tax constitutionally valid. Thus expanding Commonwealth financial powers.
231
s51(xxix)
External Affairs Power
This section provides constitutional authority to make international agreements lawful in Australia and then override State laws that conflict with them.
232
Koowarta 1982
In this case the QLD government was found to be in breach of the Racial Discrimination Act 1975 due to their refusal to sell land to a man because he was Aboriginal. This Act was deemed constitutional due to Australia signing an international human rights agreement. Thus eroding state sovereignty and expanding Commonwealth powers
233
Tasmanian Dams Case 1983
In this case the Tasmanian government was prevented from building a dam which would cause flooding to an indigenous heritage site due to the Commonwealth's World Heritage Properties Conservation Act 1983. This Act was deemed constitutional as Australia had previously signed the int'l convention for the protection of the worlds cultural and natural heritage. Thus eroding State sovereignty and expanding Commonwealth powers.
234
Ha and Hammond v NSW 1997
In these cases the High Court found that the fees the State governments had levied on alcohol and tobacco were a form of 'excise' and therefore exclusive to the Commonwealth under s90. Thus eroding state financial powers and increasing the VFI.
235
Cole v Whitfield 1988
In this case the High Court found that a Tasmanian company could not place restrictions on the size of crayfish to be imported as it was seen to disadvantage SA whose crayfish were smaller. Thus eroding state legislative powers.
236
Workchoices 2006
Workchoices was the Commonwealth industrial relations law introduced by the Howard government which sought to take over most State industrial relations powers. Workchoices was passed using s51(xx) which was a broad power. In this case the High Court upheld Workchoices legislation rulign that the Commonwealth can legislate for industrial relations using the corporations power. Thus a 'head of power' was redefined to expand commonwealth powers.
237
What is a common law example
- Norrie V the NSW RBDM (2013)
Causes:
- Norrie transitioned from biological male to female then adopted a non-binery identity
- 2010 Norrie applied to NSWRBDM to be registerd as 'sex not specific'
- 4 months later NSWRBDM said it was an error
- Norrie appealed to NSW court of appeals which ruled in her favour (his favour...wait??) - NSWRBDM appealed to the HC
Decision and Why:
- Judges secided Norrie could not be recorder as male or female, rather they accepted 'Sex not specified'
- "For the most part, the sex of the individuals concerned is irrelevant to legal relations except for the Commonwealth Marriage Act"
Significance:
- Provides precedent for a similar decision to be made in other states
- Legally affirms the existence of people who are neither male nor female
- Displays the HC's power to make final binding decisions on disputed cases.
238
Example of a government mandate passing?
2016 double dissolution election
Triggered by ABCC Bills failing to pass
● Turnbull argued it was a Gov. mandate
● Governor General called Double
Dissolution election
239
Success and failures of Turnbull government?
```
Achievements
● Restoring ABCC (2016)
● 2016 Defence White Paper
● China-Australia Free Trade
Agreement
● No jab, No pay policy
Failures
● Opinion Polls
Malcolm consecutively last in the two party prefered vote 30 times.
● Factions within his Coalition party
○ Requires him to make deals
and often remain stagnant to
maintain party support.
● Issues within Cabinet (not a leaky
cabinet just a “special” one) = YOU ARE RESPONSIBLE FOR YOUR MINISTERS.
○ Barnaby Joyce debacle
○ Michaelia Cash issues
● Marriage Equality Postal survey
○ Couldn’t just legislate on the issue had to voice the peoples opinions in this forum to please the factions in his party.
```
240
Gillard government achievements and failures
Achievements
● Axe The Tax
● Stop the Boats Failures
● Difficulty passing through the 2014 budget had to make compromises
241
Gillard government failures and achievements?
```
MINORITY GOVERNMENT
Achievements
● Highest Rate of Passing legislation
(0.495)
● Best negotiator
● Used ability to allocate portfolios and
appt. Ministers to her advantage
○ 2010 - awarded Rudd with Foreign Affairs portfolio to
placate from him being rolled (the 2010 leadership spill)
Failures
● Carbon Tax had to be implemented
despite it being opposite of her
mandate
● Media attention
○ Late 2012 = party support in public polls = 49%
■ Due to lack of mandate
● 2013 - Leadership Spill
○ Gillard calls ballot, Rudd
opposes
○ G = 45 votes
○ R = 57 votes
○ Rudd wins back leadership
```
242
Pressure group in courts impact?
Rowe & Anor v Electoral Commission [2010]
● Get Up!
● Pressure Group Impact (Court)
243
Pressure groups in parliament impact?
Methods:
-lobbying Eg. Clubs Australia wanted to prevent antigambling bills ( a. Wilkie). A pressure group made Gillard drop legislation when she didn’t need Wilkies support.
- also petitions, letters to MPs and submissions to enquires.
Eg. ACTU and Trade Union
- workplace relations amendment act (2005)
- wanted to repeal through replacing the govt.
- used lobbying, submissions
Impact: Howard/lib government introduced.a fairness test ( may 2007)
- Ronald (alp) won 2007 election (Howard lost - only 2nd person to do so))
- creation of fair work act 2009
244
Political parties in court impact?
Communist Party Case [1951]
● Communist Party of Aus. v Commonwealth of Aus. [1951]
● Commonwealth attempt to ban communist parties is struck down
● Limiting Commonwealth Power
Workchoices 2006
● Political Parties Impact (Parliament)
245
Political parties in parliament impact?
Party in gov- dominate legislative Adenda, most bills originate from cabinet, have a mandate to carry out policy. Eg. ....
Junior party In coalition- joint party room meetings
Eg. Nationals blocked sale of ‘GrainCorp’ to US in 2014 and helped prevent debate of marriage equality laws in 2015
BOP- minor parties (greens) in gov helped block carbon tax ?, in senate greens with BOP influenced the electoral amendment act of 2016
246
Individuals in court impact?
Mabo v QLD [1992]
Roach v Electoral Commission
Williams v cmth of aust
247
Individuals in parliament impact?
- standing for election
- submissions for parliamentary committee
- lobby mp’s
Eg. Independents holding BOP (2010-13)
Gillard minority relied on tony winsdor and tony oakshott ( independents)
= Gillard committed to 1.7 billion to Murray darling basin plan.
2005 RU486 Act
● Private Members Bill
● Abortion Pill legalisation
Territories Act 2011
● Private Members Bill
● Individuals Impact (Parliament)
248
What happened in Williams no. 1
Williams v Commonwealth of Australia (2012)
- Williams challenge NSCP constitutionality
- s61 prerogative powers didn’t permit govt to fund without legislation existing
Impact: Govt legislated in parliament by amending the financial management and accountability Act.1997 using s51(xxxiiiA) as relevant head of power
249
What happened in Mabo v qld?
Eddie Mabo Challenged and contested for recognition of indigenous land rights.
Argued that at point of colonisations native title hadn’t yet been extinguished and that meriam ppl of Murray islands owned their land.
Outcome: HC over turned common law doctrine of ‘terra nullius’ and recognised new form of land title ‘ native title’
- cmth clarified common law by passing native title act (1993)
- act recognised existence of native title in certain circumstances but extinguished it where freehold title existed
- prior to Mabo no. 2 (1992) legal principle of terra bullies was common law precedent. Meaning land belonged to no one before British settle colonisation.
- furthermore, meant land owners
250
What happened in roach v electoral commissioner (2007)
- Howard gov in 2006 introduced amendments which prohibited any prisoner from voting in federal elections
- roach (individual) challenged this as breach of s7 & 24
- HC upheld Challenge, ruled amendments unconstitutional and thus ultra vires. However prisoners serving 3+ years could still not vote
Impact: reduced disenfranchisement
251
3 constitutional cases?
- Williams
- roach
- engineers case
252
3 common law cases?
- Norrie
- Mabo
-
253
Example of Judicial review holding exec to account?
Williams no. 1 & 2
254
What happened in Williams no.2
Williams v commonwealth of Australia (2014)
- challenged constitutionality of funding NSCP under s51(xxiiiA)
Outcome: High court found payments were not a benefit to students and struck down the amended financial management and accountability act (1997), law was deemed ultravires.
- abbott and Turnbull funded program though SPP (s96)
255
Railway servants vs engineers case?
RWS- HC took intentionalist approach saying that “state functions entitled to same immunities from cmth interference as the date itself would be in the discharge of functions”
SOE- overturned prev. Literal interpretation in favour of cmth :((
256
What MUST you talk about in a High court influencing BOP question?
Corp power- work choices
Industrial relations- engineers, conc pipes, work choices
External affairs s51xxix- koowata, Tasmanian dams
Financial power- uniform tax, ha v Hammond.
257
Distinguishing feature between express and reserve powers?
- the scope of reserve powers is often regarded as greater than express powers but there are limitations. The Governor g can exercise reserve powers in exceptional political circumstances when the political leaders cannot
258
2 aspects of the 1975 crisis regarding the role of the Governor General that generated debate?
- The role of the Governor General in the ‘1975 crisis’ and the dismissal of the Prime minister Gough Whitlam
- sir John Kerr sought advice from justices of the high court Garfield Barwick and sir Anthony mason regarding legality of his powers and ability to remove Whitlam as pm. This called into question the interference of the judiciary in the political system when they should be separate.
