EXAM chapter 10,11,12,13,14,15,16,17 Flashcards

Question

How is the executive held accountable by CMR?

Answer 1

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

Answer 2

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.

Answer 3

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

Answer 4

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

Answer 5

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- ??

Answer 6

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)

Answer 7

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

Answer 8

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.

Answer 9

- 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.

Answer 10

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

Answer 11

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.

Answer 12

... 2014 March- Current is sir Peter Cosgrove

Answer 13

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

Answer 14

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.

Answer 15

- 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

Answer 16

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

Answer 17

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

Answer 18

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)

Answer 19

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)

Answer 20

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

Answer 21

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.

Answer 22

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

Answer 23

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.

Answer 24

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

Answer 25

- 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

Answer 26

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

Answer 27

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

Answer 28

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.

Answer 29

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.

Answer 30

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

Answer 31

``` Human rights: universal claims to certain freedoms and certain entitlements which ensure dignity, equality, respect and the ability to make genuine choices about ones own life on the basis that they are human All rights are: universal Interdependent Indivisible Inalienable Inherent ```

Answer 32

Negative rights:Otherwise known as 'certain freedoms'. These oblige a government (and everyone else) to take no action to interfere with individual liberty. The role of the government is to create laws that prevent people from harming each others rights. (e.g., against theft and murder). First generation rights. Positive rights:Otherwise known as 'certain freedoms'. They oblige a government to take action so that everyone's entitlements are met. These rights include the right to education (obliges the government to provide free schooling). Second generation rights.

Answer 33

1st generation rights:negative 2nd generation rights positive 3rd generation rights: ‘group’ rights

Answer 34

Civil rights: rights which allow people to engage in the community and protect their beliefs. They include freedom of speech, religion, association and the press

Answer 35

Political rights:These rights give citizens the power to participate directly or indirectly in the establishment of the administration of government e.g. right to vote, run for office. These rights include natural justice in law, as well as freedom of association, expression and speech.

Answer 36

Economic rights: This right is an entitlement to a minimum standard of living. It ensures that every person is afforded conditions under which they are able to meet their needs. They include the right to work, education, food and shelter, health, housing and social security and the right to trade.

Answer 37

Social rights:Rights which enable a person to develop and live their life on the way of their own choosing. Rights aimed at social wellbeing. These include the right to choose ones marriage partner and family and move about within a country.

Answer 38

Cultural rights:Are human rights that ensure people and communities have freedom to access and participate in the culture of their choice. These rights are aimed at ensuring humans can enjoy their culture and therefore preserve and develop one's cultural identity. When these rights are upheld people can enjoy their culture and ethnicity in conditions of equity, human dignity and non-discrimination.

Answer 39

Legal rights: Rights that apply to those accused of wrongdoing and subject to civil or criminal proceedings in court.the right for an accused person to protect themselves from severe consequences of being found liable for civil wrongs or guilty crimes

Answer 40

s51 (xxxi), individuals to receive ‘just terms’ when property is acquired by the commonwealth s80, right to trial by jury for indictable criminal offences s116, right to freedom of religion s117, citizens will not be discriminated against on the basis of what state you reside

Answer 41

s51 (xxxi), individuals to receive ‘just terms’ when property is acquired by the commonwealth Eg. Telstra Corporations limited v commonwealth (2008)- HC determined its acquisition of fair property of telecommunications cables was just as they were originally public assets

Answer 42

s80, right to trial by jury for indictable criminal offences Eg. brown v R- appellant attempted to elect a judge only trials after pleading not guilty to offence under commonwealth customs act (1901) but HC ruled this invalid

Answer 43

s116, right to freedom of religion Eg,Adelaide company of jehovahs witnesses inc v commonwealth- limits right to free exercise of religion should it affect national security however did find that s116 also protects the right to have religion

Answer 44

s117, citizens will not be discriminated against on the basis of what state you reside Eg. R v Louie (1985)- Supreme Court found denial of bail due to state of residence was invalid

Answer 45

Advantages can only be changed or altered through s128’s referendum process or informally High Court decisions = strongly protected Govt policy can’t intravene these rights Parliament cant pass law that infringes on these rights Judiciary can still discover implied rights

Answer 46

Disadvantages difficult to change= difficult to add new ones and remove outdated ones eg. us guns List can’t be exhaustive ( are rights listed more important??) Judicial supremacism

Answer 47

Racial Discrimintation Act (1975) The RDA makes racial discrimination in certain contexts unlawful in Australia, and overrides States and Territory legislation to the extent of any inconsistency Sex Discrimination Act (1984) This was an Act of the Parliament of Australia which prohibits discrimination on the basis of sex, marital or relationship status, actual or potential pregnancy, sexual orientation, gender identity, intersex status or breastfeeding in a range of areas of public life. Disability Discrimination Act (1992) This act makes it against the law to treat people unfairly because of a disability Age Discrimination Act (2004) Act of the Parliament of Australia that prohibits age discrimination in many areas including employment, education, accommodation and the provision of goods and services

Answer 48

``` Advantages parliament can pass and amend at will Can reflect values and attitudes Can be interpreted by courts Degree of judicial empowerment can be determined by way statute is written ```

Answer 49

Disadvantages less well protects than constitutional rights Can be changed, watered down or removed relatively easily Rights impose restraints/ obligations on govt but govt is in control of parliament = greater risk of seeking ways around List can’t be exhaustive ( are rights listed more important??) Judicial supremacism

Answer 50

Common law rights: right granted by the court as a result of a legal judgement that has been delivered. Refers to the rights that citizens have that come from legal traditions or conventions of the community. These rights are duly recognised by the courts. Rights and freedoms covered by common law include: Equality of religion Freedom from arbitrary arrest – reason for arrest must be given Right of access to courts – cannot be excluded Freedom of speech, movement and association eg. can hold a political rally and speak freely against the government… Right to be presumed innocent until proven guilty Right to a free trial Right to have or receive just compensation for deprivation of property Right to seek legal support/legal counsel when accused of a serious crime

Answer 51

Australian Capital Television (1992) (freedom of political communication) Concerns the Political Broadcasts and Political Disclosures Act 1991, which regulated political advertising during election campaigns, and required broadcasters to broadcast political advertisements free of charge at other times. The High Court found the laws to be invalid, since they contravened an implied right to freedom of political communication in the Australian Constitution. Roach (2007) (right to vote) This case was dealing with the validity of Commonwealth legislation that prevented prisoners from voting. The Court held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. Voting in elections lies at the heart of that system of representative government, and removal of a group of adult citizens without a substantial reason would not be consistent with it.

Answer 52

Advantages evolve on a case by case basis Can be overridden by parliament Courts have strong tendency to protect rights Disadvantages parliament can override Australia anti terror laws and treatment of asylum seekers has been criticised for breach of common law rights

Answer 53

Charter of rights: refers to statutes that have been implemented to protect the rights of citizens, they do not have the same legal standing as a constitutional bill of rights and work in conjunction with other legislation. Australia has 2. Charter of Human Rights and Responsibilities Act (2006) (Victoria) And Human rights Act (2004) ACT

Answer 54

'Guides human rights' rather than enforces them New laws must be checked for compatibility against the Charter through a Statement of Compatibility, delivered to Parliament Courts cannot invalidate legislation, parliament retains sovereignty Advantages Promotes public pressure on Parliament to follow the HRRA or have to justify its overruling Many disputes have been settled out of court using charter as guide Increased awareness of human rights Disadvantages charter isn’t remedial, is more preventative Plaintiff can only make an argument about the charter when bringing another action to court Example..... Castle v secretary Kimberley castles bought a case to court after being denied her requests to continue IVF whilst in prison, based on corrections act 1986 which states that prisoners had the right to reasonable medical care and treatment necessary for preventIon of health. Under human rights act also argued right to privacy (s8) and family (s13], equality(s8) and to humans treatment in detention (s22). Court decided that prisoners must be treated humanly in detention and access to healthcare is a fundamental aspect of human dignity Evaluation: Strength: granted right to treatment Weakness: had to piggyback case along with another action

Answer 55

difference to Victoria is complaints can be taken directly under the Act Includes 20 rights Statement of compatibility Courts required to interpret territory statutes in a manner consistent with human rights Positive Increased awareness of human rights Promotes public pressure on Parliament to follow the HRRA or have to justify its overruling Negative gives declatory power to judiciary charter isn’t remedial, is more preventative Example Nora v R Nora was charged with 4 offences and warrant wasn’t carried out. Was Finnally summoned to trial in 2009, starting in 2012. She applied for permanent leave to stay out of proceedings but refused an application. Judge found that she had right to make an application due to charter right to be tried without ‘unreasonable delay’ Evaluation: Strength- granted right to appeal Weakness- took a long time

Answer 56

The Bill of Rights 1789, statute law and common law

Answer 57

- A constitutional bill of rights Consists of a series of amendments to thee constitution and strengthens the protection of rights of the individuals and reflects contemporary expectations within a democracy. Eg. 1st Amendment, freedom of religion, speech, press, rights of assembly and petition 7th Amendment, right to a jury trial in civil cases according to the rules of common law

Answer 58

``` Statutory Protection Age Discrimination Act (1975) Civil Liberties Act (1988) Pregnancy Discrimination Act Voting Rights Act (1965) ```

Answer 59

Common Law Protection Roe vs Wade (1973) Case: Norma McCorvey challenged Texas law that prohibited abortion, except to save a woman's life. But Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment and affirmed the legality of a woman's right to have an abortion under the Fourteenth amendment to the Constitution. Loving v Virginia (1967) The Court ruled that state bans on interracial marriage were unconstitutional. The chief justice said “Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival....” Obergefell v Hodges U.S. Supreme Court ruled that state bans on same-sex marriage and recognizing same-sex marriages duly performed in other jurisdictions was unconstitutional under the due process and equal protection clause of the Fourteenth Amendment.

Answer 60

- ICCPR Australia agreed to be bound by the ICCPR on 13 August 1980 The ICCPR has two Optional Protocols. An optional protocol supplements the original convention with additional obligations. Second Optional Protocol to the International Covenant on Civil and Political Rights On 2 October 1990, Australia agreed to be bound by the Second Optional Protocol to the ICCPR. The purpose of this protocol is for States to eliminate the death penalty. - ICESCR On 10 December 1975, Australia agreed to be bound by the ICESCR. Australia uphold it through laws such as... Racial Discrimination Act 1975 Sex Discrimination Act 1984 Disability Discrimination Act 1992

Answer 61

Racial Discrimination Act 1975 implements the Convention on the Elimination of All Forms of Racial discrimination into Australian law. The Commonwealth Sex Discrimination Act 1984 implements some (but by no means all) of the rights for women contained in the Convention on the Elimination of All Forms of Discrimination Against Women.

Answer 62

An agreement under international law entered into by actors in international law, namely sovereign states and international Organizations. It is another name for treaty. Eg, ICCPR (1996) and ICESCR (1996)

Answer 63

``` Political representation Popular participation Rule of law Natural justice Judicial independence ```

Answer 64

the extent to which the will of the people is represented in the composition of the legislative branch of government. How enfranchisement, candidature and electoral system determine who is elected to represent their interests. Can include the extent to which particular groups are adequatly represented.

Answer 65

Uphold through... - full suffrage ( women 1902, ATSI 1962 and 18 y/o 1973 - compulsory voting (1924), 90.98% voter turnout at last election - auto enrolment= more citizens on the electoral roll (95.1% enrolled) - compromise electoral system. Majority rule and stable government as well as minority representation - Regular elections ( 3 yrs in HOR and half senate election every 3 years) - Provisions for absentee ( 4.62%) , postal (8.58%)and pre polling voting (3. 57%) (82.85- ordinary voting) - Any citizen can run for office - Representation in that 150 MHRs and 12 senators per state - Women 29% HOR and 39% HOR - Indigenous AEC prevents gerrymandering and -Malapportionment Baldivs new electorate for 2016 Undermined through... - proportional voting distorts power Eg. Tim storen being able to block company tax cuts and the liberals currently needing support of greens to pass legislation through senate (8) crossbenchers - Franchise has important limitations Eg. Non citizens can’t vote yet pay taxes, prisoners serving sentences of 3 years or more and those of unsound mind or who have committed treason if not a member of a major party then you are unlikely to be elected. - Judges make common law ( unelected) - Gov. General is unelected - Issues with representation in the HOR ( however senate provides better diversity upholding representation) Eg. 29% women in HOR, 39% in senate - Some MHRSs have more power than others Eg. Backbenchers v ministers -Compulsory voting encourages donkey voting which distorts representation

Answer 66

Upheld through... - full adult suffrage ( women 1920, native Americans 1924, 18 y/o 1971) - shorter electoral cycles ( 2 years for Congress) - First past the post voting= majoritarian based and strong link between representation and constitution Undermined through.... - First last the post voting = no chance of minorities achieving formal political representation ( 2 party system- democrats and republicans) - little electoral reform in USA to impose representation - gerrymandering due to decentralisation of electoral standards ( non standardised electoral system) - In 2000 Florida voting machines malfunctioned disenfranchising 15000 - Issues with political funding and campaign donations = representation based on wealth, ( citizens United gathering federal electoral Commission 2010 - No consistency of voting rights for prisoners Complications involving electoral college Trump won, Hillary won popular vote overall

Answer 67

The extent to which individuals can directly access or legitimatly contribute to the political and legal process within a country. Includes the ability to vote join a political party, freedom to criticise and challenge government.

Answer 68

Upheld through... -provide free fair And regular elections -Established and recognised electoral process and procedures. -Mechanisms to protect the integrity of results, especially when counting votes ( AEC scrutineers ensure this) -regular elections and compulsory voting ( see PR stats) - anyone can join a political party and can run for parliament at state/ federal elections. - many political parties seeking representation - can join pressure groups Eg. get up! SSM& Rowe , clubs Australia against anti gambling reform and ACTU - Free media with open coverage of rallies and protests - implied right freedom of political communication Australian capital television v Herald weekly times (1994) Eg. Lange v Australia Broadcasting corporation (1997) - Free to criticise government at rallies or/ and protests -Open parliament ( question time)petition govt, and submissions to parliamentary enquiries ( eg. Antony Green and 2016 senate reform) -Common law ( legal participation) can settle dispute through courts -Meeting with local members Undermined through... - disenfranchisement for some groups (see PR) - Compulsory voting infringes upon civil liberties ( right to vote should include right not to vote) - Wealthy elites have access to decision makers ( political funding + foreign investments ) - Fewer people getting involved in traditional political groups - Lower turnout rate in 2016 election than in previous election

Answer 69

- freedom to choose to vote ( voluntary voting) - Voter Turnout rate in 2016 was 55% - No election has ever achieved higher than 65% - Regular elections - 4 years for president, 2 years for Congress - Voters have a choice of political parties - People can form pressure groups, lobby politicians and present petitions - Primaries and caucus provide more participation within the party Undermined through.... - qualifications to stand for HOR ( 25 yo and citizen for 7 years) - President must be born in USA (over 35 years old + living for 14 years consistently) - Registration is organised by the states ( partisan administration) - Lack of absentee and postal voting ( not in all states) - Two party system means that an individual is unlikely to get elected if not part of a major party. - Pressure group is corporate based. - Gerry meandering= disenfranchisement - Electoral college - Lowest voter turnout in 2016 - In 2012 42 million were stripped of voting rights

Answer 70

the principle that all individuals are equal before the law, laws must be based on consent, involve consistent accepted procedures and apply to all citizens of government as well as the actions of individuals. It rejects arbitrary and absolute power based on constitutionalism.

Answer 71

Upheld through... -constitutionalism ( power of govt is limited as it is written) constitutional framework supports SOP -High court ( avenue of appeal) through its roles and powers Eg. Constitutional interpretation ensures law is upheld/ ability to deem laws ultra vires - actions of govt can be checked for lawfulness ( eg. postal survey) - All individuals are accountable for their actions and no one is above law Eg. Craig Thompson/ Marcus einfield - strong record of human rights ( eg. Malaysian solution being overturned) - Administrative appeals tribunal = Accountability of public service - Legislative interpretation president upheld Undermined through.... - breaches of law must be tested in court - delegated legislation cannot be scrutinised - GG reserve powers are not accountable (1975 crisis) - Creative activists judges may avoid precedent (Mabo) - Creation of common law goes against SOP and is created by unelected judges - Antiterrorism laws, Offshore processing, Retrospective laws

Answer 72

Upheld through - strong belief in constitutionalism - Public service decisions made on basis of law and must be obeyed by all including those who made them (United States v Nixon 1974) - Strong SOP - Supreme Court has the power to examine the constitutional validity of legislation - Cannot pass retrospective laws Undermined through.... - sovereign immunity- federal government cannot be sued unless it has waived its immunity or consented to the suit - patriots act ( arbitrary power) undermines presumption of innocence and denies suspects access to an independent judiciary

Answer 73

Extent to which the Institutions of the judiciary and judges are free from interference by other institutions and individuals, such as political pressures.

Answer 74

Australia Upheld through... -judges are appointed, not elected (s72) HC justices are appointed by the GG in council -Westminster system =judiciary kept independent and removed from external influences -Cannot be removed except by the gg in council after a joint sitting of both Houses of Parliament on the basis of ‘proven misconduct and incapacity’ Renumeration cannot be altered by parliament after appointment -Secure tenure until age of 70 -Legislation cannot overturn past decisions, can only abrogate Undermined through.... - legislation can be made to interfere with judicial independence such as mandatory sentencing (NT &WA) - can be removed by parliament by GG in council - Executive appoints justices to the HC

Answer 75

Upheld through... -justices have secure tenure and renumeration -President appoints ppoints judges with advice of senate -hard to remove but can be impeached Example of independence Guantanamo bay 2008 sop Undermined through... - 7 states elect judges which exposes them possible partisan bias Eg, Texas, Louisiana, Alabama all have death penalty and tens to be harsher on penalties

Answer 76

A set of principles which ensure that citizens have the right to be heard and they are provided with and have the right to respond to any information that is presented to them. Decisions are free from bias, the concept of natural justice ensures the right of all citizens to have access to court proceedings where they are able to argue their case before an unbiased judge. It also ensures that the individual has the right of appeal if the original has the right of appeal if the original trial contained flaws and inconsistencies.

Answer 77

Upheld through... -avenues of appeal availabile with specific appeal courts established in certain jurisdiction -Rules of evidence and procedures of adversarial trials. ( ROE, Pretoria o processes for criminal and civil cases) are designed along lines of fairness Impartial adjudicator required. -Appeals can occur if bias is perceived. Isbester v Knox city council ( 2015) -Right to fair trial -Right to representation -Presumption of innocence -Law can be tested in court -Alternative dispute resolution (ADR) Eg, AAT -Public confidence in the courts Undermined through... - High Court of justice suggest that the rich can ‘buy’ justice - Costs are prohibitive (eg. C7 case) - Mandatory sentencing impacts on Ability to provide an entirely impartial judge - Knowledge barrier makes it difficult for uneducated or those belonging to an ‘outsider’ group to lodge a case. Distrust. - Distance creates a barrier in access to courts - Long delays in justice, backlogs reduce ability to uphold natural justice. “Justice delayed is justice denied”

Answer 78

Upheld through... - Appellate jurisdiction of Supreme Court of USA - Avenues to appeal through legal system - Legal aid an be provided for those who need it - Presumption of innocence - Bill of rights guarantees some rights such as the right to silence and against self incrimination - Adversarial trail procedure is designed to guarantee fairness Undermined through... - high costs prohibitive - Growing levels of income disparity leads to unequal access to courts - ‘Justice delayed is Justice denied’- time consuming process - Elected in 7 states= harsher penalties ( affects severity of sentencing only)

Answer 79

Study changing experience of a group in PAL

Answer 80

Study political and legal issue

Answer 81

Principle that the public have delegated the task of governing their country to the people who have been chosen at elections. In Australia the representative government is formed in the House of Representatives (lower house) with the political party who attains the majority of the seats and being asked by the Governor General to form government.

Answer 82

The people of Australia choose, through the election process, people to act on behalf in parliament; acts on their beliefs, attitudes and perspectives and to the people at the last election

Answer 83

Party or coalition of parties and independents that won the majority ( mandate to rule) at the last election.

Answer 84

States that ‘the Governor General may appoint of officers to administer such departments of the state of the commonwealth as the Governor General in council may establish. These appointed officers shall hold office during the pleasure of the Governor General. These ministers that’ll be members of the federal executive council and shall be the queens ministers of state for the commonwealth

Answer 85

- enact legislation for and on behalf of the Australian people Eg. Initiate, debate, approve/ disapprove (or amend statutes) as outlined in s51 ‘to make laws for the peace order and good government of the commonwealth. - debate issues of public policy - form of government and check government (opposition)- through censure motions/ votes of no confidence in lower house - authorising appropriation s81

Answer 86

Australian parliament is comprised of a group of elected representatives, divided into 2 houses who wish to control the political and legislative agenda

Answer 87

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

Answer 88

Politicale mandate:in modern liberal democracies, those who win elections claim a political mandate. A social contact between the state and people.

Answer 89

- vote against legislation in the senate and negotiate with the government to make changes and then pass the bill - refer bills to a committee for investigation or investigate bills as a member of a committee and present findings to the government - introduce a PMB to parliament

Answer 90

- a party or coalition must maintain the support of majority of the members of the lower house in order to remain in government. Gov must resign if defeated in a motion of no confidence in the lower house or at an election. - government is answerable to the people and the parliament - if a minister loses a vote of confidence in the house of Reps they must resign - govt must guarantee supply at least once a year. ( check on exec) -

Answer 91

- Governor Generals major power to appoint and dismiss government ministers and pm. As they hold office at the “pleasure of the GG” This power was used in controversial 1975 crisis - section provides for the exercise of powers by the Governor General advised by executive. It is a convention that the gg acts on the advice of the Prime minister - stipulates that ministers are members of parliament - only section of the constitution that refers to responsible system of government but it does not explain it in great detail or how it works in practice

Answer 92

Council that provides ministerial advice to the Governor General and deals with matters that are recommendations by ministers for approval of the Governor General Eg, a person to be appointed to a position, a treaty to be ratified or regulation to be made (comprised of Governor General, pm and other ministers of state)

Answer 93

The doctrine whereby the power to make and manage federal law is divided between 3 seperate groups/ arms - the legislature, the executive and the judiciary. This is an essential feature of Australia’s system of government and acts as a check and balance on each arm. It is important for preventing the misuse of power and avoid the monopoly of power by any one group.

Answer 94

- Constitutional framework that limits power through the separation of powers and the rule of law. Under the federalist system in Australia there is division of powers, eg. exclusive powers s52 and concurrent s51 - judicial independence engcouraged through s72 -

Answer 95

- executive is drawn from the legislature and is accountable to which means a limited separation of the 2 arms. It incorporates resp gov and s64 ensures it. - constitution doesn’t abide by strict SOP but tries to instincts upon the independence of the judiciary

Answer 96

Members of the executive team ( cabinet) within the government which is divided into ‘inner ministry’ (cabinet) and ‘outer ministry’. The ministry has the role of directing government policy and to make decisions regarding national issues. The ministry/cabinet can formulate proposed legislation that may have arisen from various government departments. They are also responsible and accountable for government expenditure. All cabinet discussions are secret and ministers are expected to abide by cabinet decisions (cabinet solidarity)

Answer 97

- censure motions and votes of no confidence- these have limited effectiveness, particularly in the house as the opposition rarely has the number of votes to be successful. They may be more effective in the senate if it has the balance of power or a hostile senate Eg. Successful censure of Fiona Nash in March 2014 - members of the opposition have right to sit on all committees. They can question witnesses and produce reports which are tabled in parliament that can highlight any issues with government policy or legislation. This can be effective in some circumstances especially when they outnumber govt MPs. However govt can ignore committees findings

Answer 98

For- opposition usually does not have the numbers in the lower house to block,legislation or initiate a successful censure motion of no confidence and thus cannot hold the government to account Against- the opposition may not have the numbers in the senate to block government bills on their own but they are able to combine with minor parties and cross benchers to block legislation or negotiate changes Eg. Greens and ALP blocking legislation to reintroduce the ABCC legislation in 2016

Answer 99

- individuals can be member or public or a member of pat ( an independent or ‘rouge’ Pm) - introduce PMB unlikely to be successful Eg. 91 introduced in 44th parliament with 90 rejected - develop and present petitions to parliament (there have been over 3462 since 2000 however few have led to changes in legislation) - high court challenges - any person can challenge the validity of commonwealth legislation in the high court. Eg. Mabo, roach, Rowe and Williams 2012&2013

Answer 100

The final stage in the legislative process. When a bill has passed both Houses of Parliament, it is presented to the crown by the initiating minister. The crown ( representatives by the gg) will Act on the advice of the government gazette and comes into force on the set date. legislation passed by parliament has no effect until it is given royal assent by the gg.

Answer 101

- s72 - Westminster system: judiciary is an independent arm of the constitution and should be removed from external influence - judges are free from interference and intimidation by external forces Eg. Mabo no.1 governments not able to arbitrarily abolish native title rights - judges have secure tenure, can only be removed from office in extraordinary circumstances (grounds of proved misbehaviour and incapacity)

Answer 102

1. Bill introduced into either house and passed by an absolute majority before being referred to as the constitutional alteration bill which outlines the specific referenda question 2. The constitutional alteration bill once passed needs to be voted on by the people of Australia within 2 to 6 months of parliamentary approvals no a double majority is required. 3. The bill receives royal assent

Answer 103

- amending s44 in light of ‘citizenship saga’ in 2017 - republic referendum in 1999: it would cut ties with UK leading to an Australian Head of State which is an important symbol and changes to parliament would be a better reflection of the modern Australian political system - indigenous recognition in the constitution: > removal of racist clauses of the constitution and inserting clauses that would recognize indigenous people as the first Australians and their languages. > build on changes made in 1967 referendum which changed wording of s51xxvi. > Repealing and replacing section 25 and including section 127A > reflect changing attitudes against indigenous people, important part of reconciliation process and would also give them a stronger voice in modern Australia

Answer 104

- established in s71: with s73,75 and 76 outlining key powers - s72 outlines power of appointment of HC justices. Gg in council appoints the justices to the high court. In reality appointments are made by the Prime minister and the attorney general usually has a major role in this appointment. S72 guaranteed terms of tenure and protects them from political pressure by protecting income - the HC is comprised of a Chief Justice and 6 justices. Currently Susan Kiefel

Answer 105

- the responsibilities of governmental shared between the levels of government ( national and regional Eg. States) - distribution of power in a federal system (jurisdiction); often outlined in a written constitution

Answer 106

- uniform/ ‘mirror’ legislation- states adopting similar legislation to ensure consistency across the states in areas which are generally residual powers Eg. Uniform anti error laws (2014), uniform national gun laws adopted after the port Arthur Massacre - The Murray- Darling Basin , states reaching an agreement for management of the river system

Answer 107

Engineers case (1920)- overturned principle of states levying export duties Uniform tax cases- no.1 states lost an import revenue steam of income tax to the commonwealth, no.2 decreased states financial power

Answer 108

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.

Answer 109

Process by which the six seperate colonies joined together by peaceful means to form ‘an indissoluble federal commonwealth’. The colonies retained the systems of government they had already developed and a new federal government that was responsible for matters concerning the whole nation was formed.

Answer 110

- change in federal balance of power due to uniform tax cases 1 & 2 after which responsibility for collection of income taxation became commonwealth responsibility which increased their revenue at the cost of the states. - 1967 referendum gave the commonwealth the power to make special laws for the aboriginal people. So states could no longer have differing laws applying to aboriginals and also allowed the aboriginal population to be counted in the census.

Answer 111

The gradual shift of powers from the states to the commonwealth over time. At the time of federal government was suppose to have a minor role and the states retain their autonomy, however that situation has changed with the commonwealth becoming dominant in the federal balance of power. It has occurred as the result of high court judgements, unchallenged legislations day referral of powers

Answer 112

- scrutiny of gover activity such as examination of bills, public administration and expenditure eg. Senate estimates committee ( John Stanhope) - investigation of policy issues

Answer 113

The committee system is comprised of small cross party group of membership inquirie into specific matters in the legislation and report back to parliament. Committees play a vital role in the legislative process and at a significant aspect of the accountability aspects of parliament. Committees can be select, standing or joint committees.

Answer 114

- appointing the Prime minister and senior ministers who administer the federal public service departments (s62 and 64) - appoint an executive council to advise the, on day to day business of government (s62) - removes government officials- on the advice of the executive council (s64) - can force the ‘dissolution’ of parliament, including double dissolution, and to issue the writs for a new election (s28, 32)