EXAM chapter 10,11,12,13,14,15,16,17 Flashcards
Formal and Informal Methods of Constitutional Change?
Formal: referendum
Informal: HC Interpretation, referral of powers and unchallenged legislation
What are Referendums?
Section 128: how to change the constitution formally (referendum)
Both houses have to agree on question
National vote is held
Needs more than half of the original states to vote yes overall, plus an overall yes by all voters
GG needs to sign off
What referendum have been successful in Australia?
State Debts 1910. Altered Section 105 to allow the Commonwealth to take over state debts whenever they incurred.
State debts 1928. Disallowed states to borrow money, except through a Commonwealth controlled loan council.
Social Services 1946. Altered Section 51 to allow the Commonwealth to legislate easily on social services.
Australian Referendum 1967. Include Indigenous Australians in the census and allow the Commonwealth to make laws about them.
Australian Referendum 1977. To allow citizens in the territories to vote at referendums.
ADD
Example of referral of power?
Section 51(xxxvii):
Allows states to transfer areas of responsibility to the Commonwealth.
2003 the commonwealth government enacted the criminal code amendment (terrorism) Act after all states referred powers relating to this act to the commonwealth government
Unchallenged legislation example
Unchallenged Legislation:
The Commonwealth makes legislation in areas they shouldn’t according to the Constitution, but since the state governments don’t challenge it, it becomes law.
Eg. The establishment of the commonwealth employment services such as centerlink. Though minor, these acts have strengthened the commonwealth government within the federation
Informal constitutional change through HC interpretation example?
The High Court can interpret the Constitution according to Section 76. 1942 and 1957 Uniform Tax cases 1997 Hammond Case 1920 Engineers Case 1971 Concrete Pipes Case 2006 Work Choices
How is parliament held accountable through elections in the HOR?
Accountability Upheld by- single member electorates (150 divisions) make voters closer to candidates and they know who to hold accountable Short 3 year terms Marginal seat campaign Sitting member last campaign
Issue-
Partisanship +
The single member electoral system used in the house = majoritarian system so percentage of total seats an election winner wins is greater than the total number of votes won, The winner has a disproportionate number of seats. (Winners bonus)
allows the formation of stable majority governments but skews the actual results and votes of the people in favour of the winning party leading to possible misrepresentation of voters true intentions and makes it difficult to hold parliamentarians to account for specific policies
How is parliament held accountable through elections in the senate?
Accountability Upheld by-
people who vote to promote BOP situation in which the senate can hold the HOR to account,
15% dual voters
Issues-
not really held to account for federal role ( not all that representative of their states )
6 year terms
Multimember electorates- hard to know who to hold to account
Malapportionment (TAS vs WA)
complex PR voting system
What processes and procedures hold parliament accountable?
Standing orders, Speaker of the house, Hansard, Matters of public importance and parliamentary committees ( House of Representatives, Joint committees , Senate committees )
How is parliament held accountable through processes and procedures?
Accountability Upheld by-
+ Standing orders = rules and guidelines to ensure that parliamentary business is conducted in appropriate manner, limit power and actions of an individual, hold MPs accountable for personal behaviour in parliament. ( MPs can be removed for inappropriate behaviour under 94A Eg tony ab.)
Issue-
Standing orders= HOR govt can amend or suspend standing orders with a majority vote (94A) can waste time
Speaker of the house= enforces Standing orders and theoretical non partisan
Hansard= MPs held accountable for broken promises and things said
Matters of public importance = procedure that allows members to speak in parliament about current issues, if they haven’t been raised in other debates in the chamber. Eg. 2012 May 22nd following Craig Thompson’s speech a debate on whether or not to censure him and how to deal with allegations made about statements made in the chamber ( limited effectiveness)
parliamentary committees = specialise in different areas of parliament work. scrutinise and debate legislation and issues and make sure
How is parliament held accountable by the privileges committee?
Accountability Upheld by-
inquire into breaches with little evidence
MPs can speak without fear of liability
Committees can sanction members in breach
Eg. Craig Thompson in 2016
Issues-
issues rarely referred due to partisan politics
Is rarely referred when breached
Eg. Bronwyn Bishop used office for a fundraiser in 2014
Eg. Tony Burke
DEFINE elections
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How is parliament held accountable through judicial review?
Accountability Upheld by-
seperate judicatory/ impartial
HC can adjudicate the constitutional validity of parliaments statutes Eg. Williams no. 2 ( financial management and accountability Act 1997 declared ultra vires)
The HC and other federal courts have the power to interpret commonwealth statutes using different maxims of interpretation
Issues-
courts expensive
need locus standi
Unchallenged legislation
Define parliament
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Define standing orders
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Define speaker of the house
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Define Hansard
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Define matters of public importance
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Define parliamentary committees
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Define privileges committee
Senate and House of Representatives privileges committees inquirie into and report on breach of privilege or contempt matters referred to by the relevant chamber. In some cases, they may call for witnesses and documents to assist with the inquiries.
- The purpose is to investigate complaints about breaches of privilege and to hold those found to have breached privilege accountable.
Define judicial review
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List ways parliament is held to account?
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List ways executive is held to account?
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How is the executive held to account through IMR?
- Parliament can censure a minister by passing a censure motion (there has never been a successful censure motion against a minister in the HOR)
- Individuals can be held to account for their personal probity and propriety and ministers for actions of the public service department that is their portfolio.
But…
- They rarely pass due to executive dominance and it’s not completely clear what behaviour would require a minister to resign and who’s role it is to enforce it.
-The senate which lacks weight of west minister convention ministers not required to resign.
-A censure motion can only really bring pressure to bear or force resignation or at least get media coverage.
- if the Prime minister defends and supports a minister they can protect them from resigning, which can lead to inconsistent application of the convention.
EG. In 2017, for example Michalia cash did not resign ,as she has the prime ministers support ,despite having misled albeit unknowingly the senate estimates committee regarding involvement of her staffers in tipping of the media to raids on union officers and didn’t resign.
How is the executive held accountable by CMR?
Uphold-
Rarely successful but convention does permit the opposition to suspend the business of the house and engage in lengthy attacks upon the government. The attacks may highlight weaknesses, mismanagement and problems within public service and cause government significant negative public attention.
Issue-
rarely successful as a device for removal of a poorly performing government as it would require breakdown of party discipline in a governing party of it were to vote against its own government
Define IMR
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Define CMR
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Define senate estimates
Committee that plays a; important role in the accountability of the executive- both in cabinet and the public service. They are special sittings of eight legislative/ references committees of the senate that conduct investigations during the budget hearings at which executive spending is examined by parliament.
How executive is held accountable by senate estimates?
Uphold-
-independence of senate and lack of executive dominance = Have capacity to make wide range of investigations into all areas of government activity
- can call ministers and public servants to answer any questions relating to the running of their department, including government policy, controversial events and scandals
Eg. Australian post chairman John Stanhope (2017) was called to appear at An estimates hearing to justify, Australia post boss Ahmed Fahours salary of 6.3 million. SE were able to review and scrutinise government business, Fahour resigned and PM Turnbull responded by starting a full review of financial payments in executive departments.
Issue-
ministers can send delegates senators to appear on their behalf, avoiding being personally questioned and scrutinised
Eg. Michaelia cash (may 30th 2017) sending delegate Zed Seselja on her behalf to An estimates hearing.
Eg. 2013 Abbott Gov declaring all on sea matters as ‘classified’ and therefore not able to be bought up in estimates hearings = no accountability
Define senate regulations and ordinances committee?
Is a senate standing committee with the role of supervising how the executive uses its subordinate law making power. In this was the parliament , being the legislature, retains ultimate control over lawmaking
How does SRAO committee hold the executive to account?
Uphold-
all subordinate legislation can be disallowed by parliament and is automatically referred to this committee.
Committee tables a weekly report called delegated legislation monitor where it publishes inquiries and recommendations into subordinate legislation.
Committee Checks for subordinate legislations accordance with statue, doesn’t tresspass unduly on personal rights and liberties and contain matters more appropriate for parliamentary enactment
delegated legislation monitor includes index of instruments which lists subordinate legislation of concern. Also includes disallowances alert which includes recommendations to senate to disallow a particular regulation, ordinance or instrument. Regulations in disallowance alert are debated and voted on in senate.
= frequent/ constant oversight and scrutiny of subordinate legislation, warning of government overreach and revocation of government law making power by parliament.
Eg. Disallowances alert 25/06/18 Australia citizenship amendment (concessional application fees) regulations 2018 was disallowed by senate.
Issue- ??
Define Auditor General?
The Auditor general is an independent officer of parliament responsible for performance and financial reviews as well as assurance audits into public service , other executive agencies and the government. The Auditor general oversees Australian national Audits office(ANAO)
How does the Auditor General hold the executive to account?
Uphold
- different types of audits: performance (way departments carry out day to day business) financial, ( check financial statement and records of govt department and agency) and assurance ( ensuring relevant laws standards and guidelines are being adhered to)
- Bipartisan support and is an independent officer of Parliament
- ANAO publishes practice guides, newsletters about their role to inform and alert public servants that there is someone to hold them to account for their finances peformance and compliance.
Eg. In 2016, the auditor general was asked to investigate Sophie Mirabella after she made claims during a public media event that her electorate had missed out on $10 million dollars worth of government funding for a hospital, because they did not voting her in at the 2013 election. Inducements in return for votes are not allowed
Define administrative appeals tribunal
The AAT conducts independent merits review of administrative decisions made under commonwealth law. They review decisions made by federal government ministers, departments, agencies and in some circumstances, decisions made by state government and non government bodies. The AAT doesn’t have general powers to review decisions unless the relevant Act allows it. There are more than 400 acts that grant power to the AAT.
How does the AAT hold the executive accountable?
- They are concerned with accountability of public service, by reviewing administrative decisions unlike courts they emphasise fairness, informality, efficiency, timeliness and economy. They help members of the public test, in an independent body, administrative decisions affecting them, holding public service accountable
Eg. In the Kashkooli and minister for immigration and border protection (citizenship) [2016] case Armin Kashkooli, an Iranian granted a refugee visa, was denied citizenship by the Immigration and Citizenship Department as he had committed a crime didn’t write it on his application. After an appeal was launched by the AAT, the tribunal decided to uphold the Department of Immigration’s decision and denied citizenship on the grounds of bad behaviour. Although the decision wasn’t reversed this shows that through the appeals process the decision of the government departments and public servants can be scrutinised and held to account
But..
but not capable of exercising judicial power
The Australian appeals tribunal can only review administrative decisions where an act or regulation says it may, which could arguably, be considered a limit however there are over 400 regulations that empower the AAT to decide administrative decisions, so it does have a wide scope of jurisdiction.
How does judicial review hold the executive accountable?
Statutes can be interpreted by courts and struck down by the high court if they are ultra vires.
Government policy can be declared unlawful if not within the scope of of the law. Executive prerogatives can be declared unconstitutional.
Public service decisions, even after going to AAT, can be taken to court and be subject to judicial review, Writs of mandamus (s75) and injunctions can be issued
2 Examples of judicial review holding executive accountable?
Eg. In the Plaintiff S99/2016 v minister of immigration and border protection [2016] case an African woman and asylum whilst detained at the Nauru Processing was raped and became pregnant. She could not have an abortion on Nauru because it would have been illegal under Nauru law so the Minister decided to fly her to Papau New Guinea for the the procedure. The Minister involved stated that it would be safe to have the procedure in PNG, however the court ruled that it would not be safe or legal and that the Commonwealth had a duty of care to facilitate a safe and legal abortion, the injunction prevented the abortion taking place in PNG.
Cabinet policy, policy made under ministerial discretion, can also be subject to judicial review, this can be seen in 2011 when David Manne challenged the governments Malaysian solution arguing that it was unlawful under Act the migration act. The government planned to do a swap with Malaysia taking in 4000 genuine refugees in exchange for 800 asylum seekers, minister Chris Bowen made a comment saying Malaysia was able to provide necessary standard of protection however the high court invalidated this declaration as Malaysia had not signed refugees convention and was not bound by international law to provide sufficient protection to asylum seekers.
Define Governor General
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2014 March- Current is sir Peter Cosgrove
How is the gg held accountable through appointment
Under section of 2 of the constitution, the GG is appointed and holds their position at the pleasure of the queen. In reality by convention, the appointment of the GG occurs on the advice of the Prime Minister (since 1930).
Once appointed take an oath and swear to serve Australia’s monarch ‘according to the law’ in the senate in front of Chief Justice, PM and presiding officers of both Houses of Parliament = reinforces importance of Governor General being held accountable for actions
How is the gg held accountable through tenure
Through tenure:
- The tenure of the GG is at the pleasure of the Queen (technically unlimited tenure) However practice has Tenure of 5 years
- s3 ‘salary shall not be altered during his continuance in office”
- Governor General act 1974 allows parliament to adjust salary of incoming Governor General. Since the Act was passed, the salary has increased after every term.
How is the Governor General held accountable through dismissal?
- By convention, the Queen may choose to recall or dismiss a GG before their term is complete, only on advice of the PM.
- None has ever been removed this way , although came close in the 1975 crisis. They are usually given option to resign rather than being removed = limited accountability
- Since federation only 3 have ever resigned
- other than removal by queen no other formal mechanisms of removal by parliament or by the people
Example of gg being held accountable?
Peter Hollingworth:
Closest Australia has come to a GG being removed was Peter Hollingworth
allegations arose that while he held the position of archbishop he had covered up allegations of child sexual abuse in the Anglican Church but he denied them.
The prime minister John Howard however didn’t withdraw his support from of the Governor General
However once allegations that he raped a women in the 60s came about, he withdrew from his position (may 2003) as governor general due to public pressure and intense media scrutiny
Basically= Formal mechanisms of accountability are weak in providing accountability in comparison to informal mechanisms such as public opinion
How is gg accountable through letters patent
letters patent is an open document used by a monarch or government conferring a patent or other right
Queen issued one in 1900 constituting office of the Governor General and setting out provisions and roles of the office of the Governor General
After Hollingsworth affair pm asked queen to amend letters patent to allow Hollingsworth to step aside temporarily and with out question queen adjusted letter patent on 11th of may 2013
= limited accountability as Hollingsworth could just step aside instead of resigning and queen just automatically agrees
Ways he judiciary is held accountable?
Mechanisms:
Internal Accountability->
Court hierarchies & Doctrine of precedent (transparent processes)
Natural justice: transparent trial trials processes & public confidence
(Accountable through ratio decidendi too as it’s published and open to media scrutiny )
External Accountability->
Censure + removal of judges (s72)
Parliamentary scrutiny (Abrogate, codify & clarify) + legislation (mandatory sentencing laws)
How appeals hold judiciary accountable
Scrutiny of lower courts decision and the legal processes undertaken by the courts. Appeals allow for a check on decisions and capacity of the judge,
Appeals ‘by right (on the grounds of an error of law) or ‘ by leave’ (claimed error affect on the sentence handed down)
Attorney general can scrutinise lower court if their decisions are being frequently repealed, (cannot influence the Judiciary or change decisions)
HC is highest court of appeal (s73) and has ability to discover miscarriages of justice and reverse decisions
Limit: costly, difficult to file, HC takes on very few appeals (approx only 5% are granted)
Example of accountability of judiciary through appeals
Eg. Andrew Mallard, convicted murderer in Supreme Court in 1994. Original conviction was quashed in 2005 and led to reform in appeals process and establishment of a seperate court of criminal appeals in WA.
Eg. Rafael Cesan and Ruben Rivadavia found guilty of drug trafficking in 2004. During original trial judge fell asleep and snores loudly. Rivadavia appealed to HC on grounds that had not received a fair trial and there had been a miscarriage of justice. A retrial was ordered
Define public confidence
Public confidence: refers to the level of faith that the public has in the judicial arm of government to act in line with community expectations, fulfil its role as an independent arbiter of dispute and interprets and applies the law in a way that is expected.
Factors influencing public confidence
Public participation in trials
Courts open to the public
Court decisions made fairly and according to the law and established legal proceedings
Courts and judges free from external influence
Natural justice
Natural justice: a principle of justice incorporating the rule against bias and the right to a fair hearing. Fair processes for determining the truth in dispute is known as ‘due process’. Courts and tribunals have a duty to act fairly.
Elements of natural justice
Elements:
Nemo iudex in causa sua ( impartial adjudicator) = judges and juries
Audi alteram partem ( hear both sides)= in adversarial trial system both sides present the evidence and have the opportunity to be heard before an unbiased judge/ jury
Evidence based decisions= strict rules of evidence to ensure only evidence of the highest quality is admissible and used to search for the truth.
Open and transparent hearing except on exceptional circumstances = media report trials + ppl can walk in
How does parliamentary scrutiny and legislation hold the judiciary to account?
- When parliamentary statutes and judge made law come into conflict, statutes prevail due to parliamentary sovereignty = upholds accountability
- If parliament can legislate to reinforce (codify), modify ( clarify) or abrogate common law = upholds accountability
- Legislation passed by the parliament only applies in future, therefore it doesn’t affect cases already determined by the courts= limits accountability
- Mandatory sentencing-> limits judicial discretion allowing parliament to hold courts to account for not sentencing criminals according to community expectations
Codify?
Codify: the process of legislating and converting common law to statute to reinforce it.
Eg. Mabo (1992) v qld where parliament codified the HC’s ruling in native title act (1993) creating a statutory framework for the processing of native title application
Clarify
Clarify: process of creating statues to modify the legal principles
Eg. Native title Amendment act (1997) which clarified ambiguity of the law, excluding native title in lease hold land
Abrogate
Abrogate: to formally annul or repeal a law through an act of parliament
eg. Trigwell v state government insurance. HC had upheld precedent set in searle v Wallbank 1947 that farmers don’t owe a duty of care to those injured by stray farmers. Vic parliament passed wrongs Act (1947) to abrogate searle v Wallbank and trig well.
Define common law
Common law: judge made law. Made in courts by judges deciding cases which gives rise to the need for new decisions or precedents.the doctrine of precendent is based on the principles of stare decisis. Precedents may bind lower courts within a hierarchy, they may be persuasive or binding. Common law is inferior to statute law.
How does censure and removal of judges hold the judiciary accountable
Judges of the high court shall not be removed except on proven misconduct or incompetence (s72) + Judges pay cannot be reduced (s72) = independence guaranteed but.. balanced as can be removed by gg in council on address from both Houses of Parliament in the same session
Accountability achieved through: parliament having ultimate removal power
CJ Never been removed as it’s difficult process
Closest was justice Lionel Murphy in 1980s, investigations were ceased though when revealed that he had terminal cancer.= limit to acc
Commonwealth parliamentary commission judicial misbehaviour and incapacity ( parliamentary commissions Act) 2012 enables parliament to establish formal parliamentary commission to investigate specific allegations of misbehaviour or incapacity amongst federal judiciary
