EXAM Chapter 1,2,3,4,5,6,7,8,9 Flashcards
What are the legislative institutions of government in Australia and the US?
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)
Define legislative power? ( in relation to laws)
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.
What are the executive institutions of government in Australia and the United States
Australia- government. Constitutional exec: queen +gg (s61) political exec: cabinet and outer ministry
United States- administration. President and Vice President (article 2)
Define Executive power (in relation to law)
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.
What are the judicial institutions in Australia and the US?
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)
Define checks and balances?
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.
Define separation of powers?
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
Define constitutionalism?
The idea that power should be limited by a constitution. Democratic constitutions are founded on this idea. The opposite of absolutism.
What are the 5 objectives of democratic constitutions?
- 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
Define representative government ?
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.
Define constitutional monarchy?
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
Define responsible parliamentary government?
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
Differences between HOR and senate?
- 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
Define parliamentary sovereignty?
- The concept that the parliament is the representation of the sovereignty of the people. It is the principle upon which parliamentarianism is based.
Define heads of power?
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.
Significance of s64?
mentions that ministers must be members of parliament?📖
….
Define constitutional executive?
Queen, GG
Define political executive?
Pm, cabinet and wider ministry (political executive)
-RESP P GOV not mentioned in the constitution
…
Define jurisdiction?
‘Where the law speaks’,…
Define original jurisdiction?
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
Define republic?
A form of government in which the head of state is a president
Similarities between Aus and us legislature?
- 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
Differences between Aus and us legislative?
- Australian parliament contains the executive and US Congress does not
Similarities between Aus and us executive ?
- elected executive
- appoints justices of hc
- commander in chief of armed forces
- issuing writs of Election
power to select government ministers
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
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
Differences between Aus and us judiciary ?
No way for congress to remove judges
…
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?)
-
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
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
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
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
Checks and balances on US judiciary?
Judiciary not really limited by legislative???
???
……..
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
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.
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
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)
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.
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
Define exclusive powers?
Powers granted by the Constitution to the Commonwealth Parliament alone. They may be legislative or financial powers. Eg s52
Concurrent powers?
Concurrent Powers
Powers granted by the Constitution to the Commonwealth and State Parliaments. They are shared powers. Predominantly in s52
What does s109 do?
Contains mechanisms for resolving conflicting legislation if the commonwealth and a state/s pass inconsistent laws under these shared powers
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 )
What does s106 do?
Reserve state constitutions
S108?
Preserve the states laws
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
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.
What does Australia adopt from the US?
- written federal constitution
- upper ‘house of states’ ( the senate)
- strong bicameralism- powers equal
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
What does s1 do?
State that legislative power is vested in federal parliament including the queen, senate and HOR
What does s13 do?
Sets the term for senators which is…..
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
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
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
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
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)
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
In theory how is parliaments debate function upheld?
- second reading
- debate
- question time
- consideration in detail
- committee system
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’
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.
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
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.
Elements of good government
Accountable Transparent Follows the rule of law Responsive Equitable and inclusive Effective and efficient
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
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
How does the commonwealth parliament deliver good government through following rule of law?
- constitution and acts bind executive
HC can define exec power
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
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
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
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.
Elements of good government?
Accountable
- Transparent
- Follows rule of law
- Responsive
- Equitable and Inclusive
- Effective and efficient
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’.
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.
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.
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
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
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.
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.
What are the types of roles of the Governor General?
Constitutional
Ceremonial
Non ceremonial
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.
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.
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
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.’
Powers of the Governor-General
Express and reserve powers
What does s61 do?
Executive power is vested in the Queen and is exercisable by the Governor-General.
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
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
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.
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’
Define reserve powers?
Constitutional powers of GG that may be exercised, in certain circumstances, by the GG’s own initiative.
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)
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)
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.
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.
What does s28 do?
Sets 3 year maximum term for HOR
Gg can dissolve HOR
Components of ‘real’ executive?
PM, Cabinet, junior and assistant,ministers
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.
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.
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
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
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.
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
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
