Law, Government & Policy Flashcards
1
Q
Federal system
A
so there are both State Courts, and Federal Courts (depending on the law to be examined)
2
Q
Terra Nullius
A
First fleet 1788.
3
Q
Australian Federation
A
1901 & the creation of the constitution
4
Q
Common law
A
“But most important for us…common law = judge-made law.
>That is, this is the law that arises from cases decided by Judges over time.”
5
Q
Doctrine of Precedent
A
“Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way. The legal principles that apply to a particular set of facts should always apply to situations with similar facts” (Carvan, p. 79)
6
Q
ratio decidendi
A
means the reasons for the decision
7
Q
State Courts
A
deal with legislation passed by the State parliament, and with matters of common law.
8
Q
Federal Courts
A
deal with legislation passed by the Commonwealth parliament.
9
Q
Local (Magistrates) Court
A
> Has both a criminal jurisdiction and a civil jurisdiction
>No appellate jurisdiction (except some administrative decisions, e.g. parking fines, licensing etc)”
10
Q
District Courts
A
“Criminal and civil jurisdiction
Limited appellate jurisdiction – can hear matters from Local (Magistrates) Court “
11
Q
Supreme Court: Trial Division
A
> Original jurisdiction (trial division)
both civil and criminal jurisdiction
Has appellate jurisdiction – Court of Appeal”
12
Q
Supreme Court: Court of Appeal
A
> Hears appeals from D.C and S.C (and sometimes M.C)
Can review questions of law and fact, but usually only reviews law
From Court of Appeal, a party can appeal (usually by leave) to High Court”
13
Q
Federal Circuit Court of Australia
A
hears more minor family, migration, administrative, bankruptcy, industrial relations etc matters
14
Q
Family Court of Australia
A
appeals on family matters from Federal Circuit Court
15
Q
Federal Court
A
original jurisdiction to hear range of Cth matters, and appeals from FCC (non-family matters)
16
Q
High Court
A
"Original Jurisdiction
State v Commonwealth, or State v State cases
Appellate Jurisdiction
Appeals from State Court system
Appeals from Federal Court system
Usually require special leave
High Court also interprets Constitution"
17
Q
Legislation Types
A
TWO TYPES: Statutes or Acts AND Delegated or subordinate
18
Q
Statutes or Acts
A
made by parliament
19
Q
Delegated or subordinate
A
“Made by office-holders or bodies to whom parliament has delegated law-making power
Delegated legislation includes rules, regulations, ordinances, by-laws and legislative instruments”
20
Q
Bills
A
“1)Originate from party policy, government departments, judges’ decisions, law reform or royal commissions or public pressure.
2) Pass through parliament & receive assent from the G-G/Governor before becoming law
3) After assent, Acts only have legal force once they commence “
21
Q
Legislation IS?
A
"Is made by Parliament, Is prospective, Is an active intervention in society, The terms are ascertainable from printed versions, Can be changed relatively quickly"
22
Q
Case law IS?
A
"Is made by courts, Is retrospective, Is responsive to disputes, Is difficult to ascertain, Can be resistant to change"
23
Q
Traditional approach to interpreting legislation
A
literal rule
24
Q
Rule of law
A
“The principle that every person and organization, including the government, is subject to the same laws” (Butterworths Australian Legal Dictionary, 1977, 1041)
25
Golden rule to interpreting legislation
avoiding absurdities
26
Purpose rule to interpreting legislation
court may depart from the literal meaning where that does not conform with the legislative purpose and policy of the Act – now enshrined in Acts Interpretation Acts
27
Acts Interpretation Acts
contains definitions of terms that commonly recur in legislation.
28
Jurisdiction
"(1) The scope and reach of a body’s power and authority, particularly a court’s power and authority to hear and determine a justiciable matter.
(2) The territory over which a sovereign state, court, tribunal or other body exercises such power.” "
29
International law
">A domain that is still under construction
>Some international institutions of political and judicial power exist
>Still depends on ‘buy-in’ from sovereign states
>Australia is a signatory to many international treaties and conventions
>But, needs to fashion domestic law to give effect to these obligations"
30
Australia has two distinct political traditions
Liberal tradition and Democratic tradition
31
Liberal tradition
Derived from political philosophers in 17th Century England
32
Democratic tradition
Has its origins in the Ancient world, particularly Athens in the 5th Century BC
33
Liberalism
"– liberty of the individual against constraints imposed by society or the state
>Freedom of the individual to make his/her own choices
>Resistance to perceived interference from government
>Defence of freedom of speech
>Limits to government determined by social contract (often manifested as a constitution)"
34
Democratic
"–emphasis on equality and fairness. This may necessitate limitations on the liberty of the individual
>Government is elected by a majority of the people, and this collective will needs to be respected
>Expectation that government provides services and facilities for its citizens
>Belief in the necessity for government to act in the best interests of the nation
>All citizens share the opportunities and challenges posed by society"
35
The French Revolution
"The Declaration of the Rights of Man and of the Citizen (1789)
>Central to defining individual rights which should not be infringed upon by the state or the law
>Discussion of the ‘harm principle’
>Highlights the importance of the rule of law (and its limits)
>Freedom of expression and religion
>Fair taxation system
>Separation of powers
>Right to own and maintain property"
36
The Idea of Individual Liberty
"John Stuart Mill, On Liberty (1859)
>Rulers should represent not themselves but the will and interest of the nation
>Even in democratic government not every person is properly represented, only the majority are
>The tyranny of the majority
The government is now responsible only to the stronger and more powerful elements of public expression
>This tyranny may often interfere inappropriately in the lives of the individual
The individual needs protection against this
>The only reason for the state to interfere with our lives is to prevent harm to others"
37
Ruling and Consent
"Consent as a Liberal ideal
‘>No one can be subjected to the power of another without his own consent’ - John Locke, Second Treatise (1689)
>Our government is only legitimate on account of it having been granted the collective consent of the people"
38
Social Contract
a method of defining consent - Government could only fulfill the obligations set out by the people
39
CONSERVATISM
"Revolution destroys the very ideas it was designed to create
>Disillusionment on account of the widespread atrocities committed by the French revolution led to reappraisal of their ideas and methods
>Edmund Burke and others contended that respect for traditions is the key to preserving the social fabric of society
>Conservatism should only disapprove of new proposals which threaten key existing values and institutions which society is based on
>Perversity thesis – radical change invariably leads to unintended consequences
40
Governments
">Consist of Ministers who sit in cabinet, as well as parliament
>Under the Westminster system, governments should resign if they do not enjoy the confidence of parliament"
41
The State
```
"They are responsible to parliament which is elected by the people via the electoral process.
>>>>Responsible for:
the public service
the police force
the military
welfare and taxation offices "
```
42
Economic liberals
believe that capitalism provides economic freedom, which is in itself a goal to be pursued
43
White Australia Policy
excluded all non-white immigrants from Australia
44
Nation-building
remains a strong tradition in Australia, and integral to perceptions of the appropriate role of government
45
Government Policy
Policy approaches of government will be influenced by both prevailing values as well as the global economic environment, which are interconnected
46
Separation of powers
Legislature / Executive / Judiciary
47
Due process
```
"Notice
Publicity
Standards of proof
Evidence
Impartiality
Trial by jury
Appeal
Legal representation and the adversary procedure"
```
48
Liberal principles prioritise individual rights over collective or community needs = justice?
...
49
Democratic principles are concerned with collective well-being – i.e. the ‘common good’ = justice?
...
50
Equality under Due Process FOR?
```
"Women
Aboriginal and Torres Strait Islander People
Young people/children
Older people
People with disabilities
People with mental illness
Sexual orientation
People in remote and regional communities"
```
51
Role of government
"Public education
Public health
Public housing
Welfare systems – safety nets "
52
The Constitution
"The highest source of law in the Commonwealth of Australia (establishes rule of law) (1890s)
Parliament cannot pass laws which are inconsistent with the provisions of the Constitution
Provides the legal framework in which our government and parliament operate
>but is, in many ways, an incomplete document that is supplemented by other laws & unwritten conventions
>Defines the policy areas in which the Commonwealth Government can operate - leaving any other matter to States
>The constitution can only be amended by way of popular referenda (double majority required)"
53
Commonwealth Power in the Constitution
">This usage may not be consistent with the intentions of those who wrote the constitution
>We are obliged to use the natural interpretation of words used in the constitution
>The important of the Commonwealth acting to implement its international commitments outweighs the importance of preserving the powers of the states"
54
Expansion of the Power of the Commonwealth
">The relationship between the Commonwealth and the States is an evolving one
>The power of the Commonwealth is theoretically open-ended, given that any area could be the subject of an international agreement (via the external affairs power)
>Emerging issues such as climate change and economic crises increase the likelihood of further agreements
>The interpretation of the Constitution by the high court will remain a controversial aspect within our political system"
55
Rights under the Australian Constitution
">the right to freedom of religion (s116)
>trial by jury (s80)
>freedom from discrimination on the basis of state residence (s117)
>acquisition of property on ‘just terms’ (s51[31])
>All have been subject to judicial interpretation (see example next slide)
>>>>>The right to freedom of political communication is an implied right within the Constitution (this is not a right to free speech)"
56
Powers of the High Court
"The HCA has original jurisdiction under the Constitution:
State and Commonwealth disputes, inter-state disputes or matters involving commonwealth officers (s75)
Invested in the court by federal legislation (s76)
How many judges?
>Special leave applications to appeal: three HCA justices
>Appeal cases: five justices – unless appeal is perceived to be of particular importance, then all available judges are listed to sit on the appeal.
>Constitutional cases: seven justices sit -unless for some reason a justice is unavailable or perceives a conflict of interest."
57
Judicial review
refers to the High Court’s function to review the constitutionality of laws
58
Changing the Constitution
"A bill must be passed by both houses of Parliament or, in certain limited circumstances, by only one house of Parliament
The bill is then submitted to a referendum.
>>>>It is then for the people to decide through referendum.
Will only pass if a majority of those voting, as well as separate majorities in each of a majority of states, (and where appropriate a majority of people in any affected state) vote in favour of the amendment.
>>>>In Australia referenda have had very limited success with only 8 of 44 passed; the last in 1977."
59
Federalism in Australia
A system of government in which authority is constitutionally divided between central and regional governments’ (Gillespie 1994, 60)
60
Legal Basis for Debates on Federalism
"The Commonwealth is allocated 39 policy areas, with the remaining ‘residual’ powers allocated to the States and Territories
The most prominent areas include taxation, trade, defence forces, welfare benefits, immigration, and external affairs"
61
The Role of the Commonwealth
">The level of government most closely associated with our national identity, as it represents all Australians
>Attracts the bulk of the media and the public’s attention
>Responsible for raising much of the public revenue in Australia, principally through income and company taxation
>Principal areas of responsibility include foreign affairs, trade, defence, taxation, communications, industrial relations and immigration"
62
The Role of State and Territory Governments
">>>State and territory governments deliver most major services in our society, including health, education, and law enforcement
>Most of our criminal code derives from state-based legislation
>>>Territories have less rights
>Their legislation can be directly over-ridden by the Commonwealth (s122) and have less representation in the Commonwealth parliament"
63
Vertical Fiscal Imbalance (VFI)
refers to the situation where States and Territories have insufficient revenue to provide the services and facilities they are expected to deliver
64
The Council of Australian Governments (COAG)
">Devised in 1992 as the means for resolving tensions between the various levels of government
>Dominated by the Prime Minister and the agenda of the Commonwealth
>The success of COAG depends on the negotiating ability of the heads of government (especially the Prime Minister), and the ability to sell reform within each constituency
>The ultimate means of resolving disputes between the Commonwealth and the States is the High Court, which is given the responsibility of interpreting the extent of the Commonwealth’s powers"
65
Strengths of Federalism
"provides healthy competition to improve services and policies, sponsors innovative policy practices, and provides checks and balances on government. It provides a government which is closer to the communities it serves, increases accountability and facilitates local knowledge in decision-making.
>Federalism forces central governments to explain and sell their policies to each individual constituency
>Federalism has continued to evolve, ensuring its ongoing relevancy today and into the future"
66
Weaknessess of Federalism
it leads to confusion and duplication in government, along with buck-passing. Fiscal dominance of the Commonwealth leads to reduced ability for other governments to innovate or compete with one another
67
Representative Democracy
"Remember, Australia’s democratic system is not a direct democracy
>We don’t vote on each and every issue that affects us.
>Instead, we elect representatives to parliament to make decisions on our behalf."
68
Compulsory Voting
">>>Critics argue that it is undemocratic to force citizens to vote
It forces them to vote for candidates they dislike, valuable resources are wasted in chasing up citizens for not voting, and allows disinterested voters to determine electoral outcomes
>>>Supporters argue that it encourages voters to engage on public issues
That it makes candidates and parties appeal to a broad range of people in the community, and that it makes the outcome more representative of the public"
69
“First past the post” VOTING
whoever gets the most votes wins
70
Preferential voting
primary votes and preferences are counted until someone receives more than 50% of the vote. Used commonly in lower house elections, including the election of federal House of Representatives
71
Proportional voting
seats are determined by the proportion of votes won (with preferences if necessary). Used in Australian (i.e. federal) Senate elections (where a set number of seats are available for each State and Territory).
72
Majoritarianism
Refers to the two party system. In Australia one party or coalition of parties usually receives a clear majority of seats in the lower house
73
Australian Labour Party
The Labor Party (developed 1891) is often described as ‘centre left’, focus on the rights, wages and conditions of working people. Also - social justice, fairness, and working towards ‘the common good’
74
The Greens
The Greens (developed 1970s) have a strong environmental focus, and are often described as ‘post-materialist’ or ‘left-libertarian’ - emphasise economic justice, social equality, grassroots democracy, peace and non-violence, and ecological sustainability
75
The Conservative Tradition in Australia
"Conservative politics has been dominated by the tension between liberal and conservative values
>The earliest political division in Australia was between conservatives, Those representing traditional landowning interests versus those representing emerging middle classes"
76
Two Distinct Roles of Parliament
Representative and Deliberative
77
No-confidence motions
">No-confidence motions are the ultimate expression by a house of parliament that it has lost confidence in government or a member of the executive
>No-confidence motions and/or a deadlock between houses can result in a double dissolution and a new election"
78
Parliament consists of two houses (federal level)
The House of Representatives / The Senate
79
The Role of Speaker and President
">The Speaker is usually nominated by the party or parties which have formed government - this often leads to allegations that their rulings favour the government
>The Speaker is responsible for disciplining members during question time and parliamentary debates – this may include ejecting members from the house for a period of time"
80
Parliament as Legislator
"Around 50% of parliament’s time is spent on considering legislation
Most successful legislation is proposed by government ministers
>This is because parties with majorities in Houses are far more likely to have their legislation succeed
>Most legislation originates in the House of Representatives
>The Senate cannot initiate or amend legislation with fiscal ramifications
>In order for legislation to be passed, both Houses need to pass it in identical form
>It also requires assent from the Governor-General, but this is generally a mere formality"
81
Parliamentary Committees
">There are around 50 parliamentary committees in operation at any given time -major legislation is often sent to a committee for further scrutiny. Other committees oversee sensitive areas of government or examine contentious issues
>Committee work involves extensive collaboration by members of all parties and independents – they have broad powers to request public submissions or call individual witnesses to appear
>The findings/recommendations of parliamentary committees are important and can provide an opportunity to challenge the government on major policy issues "
82
Parliament as a Public Space
">Members are entitled to speak freely and without fear of repercussions - this is known as parliamentary privilege
>Specific time is devoted in parliament to allow members to raise issues which matter to them and their communities
>Conscience debates are good opportunities to witness members speaking their own mind, rather than confirming to the party line "
83
Question Time
"Question time given priority over other parliamentary business
>Any member of parliament may ask a Minister a question without notice for immediate response
>Questions may focus on public affairs, administration, and proceedings in parliament
>Ministers must not be asked for an expression of opinion, including a legal opinion
>Set time limits for questions and answers
>Answers to written questions expected within 60 days"
84
Parliamentary Privilege
"Parliamentary Privileges Act 1987
>Words or acts in parliament are not considered an offence purely because they may be defamatory or critical of others
>This does not apply to parliamentary committees, or parliamentary hearings
>Reporting on the proceedings of parliament (without alteration) is a legal defence against defamation"
85
Relationship between business and government
">Business and government are interdependent in that they rely on one another to be successful
>Government needs businesses to pay tax and Businesses need government to provide services and facilities to help them operate.
>In addition to physical infrastructure, government pays much of the training costs (i.e. education) for employees
>Government regulates the operations of all businesses to some degree, in order to protect the public, workers, investors and the businesses themselves
>>>>>In some cases governments run businesses too
Usually these provide essential services (i.e. water, power), sometimes in competition with the private sector"
86
Non-Government Organisations (NGOs)
">>Said to be closer to the communities they represent
NGOs are collective groups formed to promote or resolve common ideas, needs or causes, Whereas government is obliged to look after the interests of everyone, NGOs simply represent a specific group or issue in society
>Whilst NGOs do not seek election, they are inevitably involved in the political process
>This is because one of the key roles of NGOs is to act as advocates for one or more issues in society
>A second key role of many larger NGOs is in delivering services and facilities
>Sometimes these two roles do not sit well together"
87
NGOs and Government
"NGOs also have close relationships with government, particularly the union movement
>Given that NGOs are so diverse, the nature of their relationship varies enormously - local groups have greater contact with local government, whilst international groups may have contact with national and international bodies globally
>NGOs who engage in advocacy have the greatest need to have their voices heard as their success depends on their ability to influence decision-makers"
88
Peak organisations
">Peak organisations act as the public face of their sector, represent many different members, and have the resources to make a greater impact
>Representations made by these organisations normally carry significant weight, on account of the broad representation they have"
89
Political Lobbying in Australia
"Lobbying is a natural part of the political process but can undermine the integrity of decision-making
>Lobbying is an essential tactic for all types of organisations who hope to influence political outcomes
>It has been a legitimate and regular feature within any democratic system
>Different kinds of lobbying – ‘inside’ and ‘outside’ lobbying"
90
Outside lobbying
"Involves putting public pressure on governments, including campaigning in the media
>This type of campaign is most intense around election time"
91
Inside campaigning
"Involves influencing government decisions internally, either through official or unofficial processes
>It may be assisted by developing close relationships with decision-makers
>Inside campaigning has the greatest potential for concern, since it happens outside the public domain, and the public is not aware of how it is influencing government or parliament’s decision-making"
92
Political Donations
"Political donations are a natural but potentially harmful part of the political process
>Government decisions may have a significant financial impact on individual businesses and the temptation to manipulate policy-making processes is always there
>Political parties often ‘sell’ access to specific Ministers
>Current legislation forces political parties to disclose the amount of donations they receive, along with the identity of large donors
>A variety of further responses have been suggested to mitigate this problem, including greater transparency, and caps on donations"
93
MEDIA
"The mass media is a mass communication instrument which can reach a broad audience
We rely on the media to access information about our politicians
Most of us form our opinions based on what we see, read, or hear - this is what gives the media so much power
The main forms of mass media are print, broadcast and online
Broadcast media is the most popular, but print media often sets the political agenda
Online media is the fastest growing form of media"
94
Media influencing politics
"The media plays a role in enforcing responsible government
>The media is central to liberal visions of democracy - under the liberal ideal it ensures that government is limited, that it is held accountable, and that injustices against citizens are exposed
>As the main source of information for the public, the media is better placed than anyone to hold the government responsible for its actions - it should play the role of a ‘watchdog’
>In reality though, the media is not a neutral entity
>Various media outlets (and journalists) have their own agendas and some outlets are quite open about these"
95
Public Broadcasting
">Both the ABC and SBS operate under specific legislation which commits them to fulfilling certain objectives
>The ABC is often accused of bias, particularly by conservative politicians
>The ABC also has a role to ‘educate the population’, yet this may run counter to the need to stick to complete impartiality on some issues
>Another of their briefs is to contribute to national identity, which is in itself a contested concept
>The SBS focus on communicating multicultural issues means that it does not necessarily need to attract broad audiences"
96
Government and the Media
">Governments have a close but tense relationship with the media
>Government needs the media to get the message out, whilst the media needs the government to provide it with information
>The media though, sees itself having a role in holding the government to account and exposing its faults
>Tension is at its height during election campaigns, when media coverage may affect the ultimate fare of the government"
97
Liberal democracy
“… a political system in which democratically based institutions of government are constrained by liberal-inspired constitutional arrangements, political practices and popular expectations that limit the scope and capacity of the governmental sector” (Parkin, 2006)
98
THE AUSTRALIAN POLITICAL SYSTEM
Constitutional monarchy / Federal system / Parliamentary system / Liberal democracy
99
Military-backed governments
Central African Republic – recent coup (August 2013). New President installed by military force.
100
Military junta
a military or political group that rules a country after taking power by force.
101
Absolute Monarchies
"Not qualified or diminished in any way; (of a ruler) having unrestricted power
>>>Example: Brunei System of Government:
>Brunei Darussalam is governed on the basis of a written constitution which came into effect in 1959.
>Under the constitution, His Majesty the Sultan has executive authority and is assisted and advised by 5 constitutional bodies, namely the Council of Succession, the Council of Cabinet Ministers, the Privy Council, the Religious Council and the Legislative Council."
102
Theocracies
"A system of government in which priests rule in the name of God or a god
Vatican City State
>The Pope is the head of state
>has full executive, judicial and legislative power
>Elected by, and advised by, Cardinals
>Also the head of the Catholic Church
Iran
>Islamic Republic
>Constitution
>Supreme Leader chosen by Assembly of Clerics
>Also, elected President and members of Assembly "
103
Communist States
"A theory or system of social organization in which all property is owned by the community and each person contributes and receives according to their ability and needs.
Example: People’s Republic of China
>Single-party state
>Originally, very closed and isolationist.
>Strong control over, e.g., the press, and political dissent
>Has become an increasingly strong economic power"
104
Totalitarianism
"A system of government that is centralized and dictatorial and requires complete subservience to the state.
Example: Democratic People’s Republic of Korea (North Korea)
Constitution – universal suffrage, elections, rights protections…but…
>Kim Il-Sung – Eternal President
>His son– Kim Jong-Il, Supreme Leader
>His son – Kim Jong-un, the Great Successor
>Underpinned by concept of ‘Juche’ – self-reliance
>Military enmeshed in political system"
105
Pluralism in Australia
">A condition or system in which two or more states, groups, principles, sources of authority, etc., coexist.
>a political theory or system of power-sharing among a number of political parties.
>a theory or system of devolution and autonomy for individual bodies in preference to monolithic state control.
>a form of society in which the members of minority groups maintain their independent cultural traditions. "
106
Indigenous Law and Culture
">Unique position within Australian society
>Has struggled to be recognised by dominant system
>Native Title Rights (including land rights)
>Vexed issue of recognition of customary law – particularly in criminal matters"
107
The Constitution
sets out how power is divided between States and the Commonwealth.
108
Capitalism
an economic and political system in which a country's trade and industry are controlled by private owners for profit, rather than by the state.
109
constitutional monarchy
a system in which the powers of a monarch are defined and limited by law.
