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Politics > Semester One Exam > Flashcards

Semester One Exam Flashcards

0
Q

SHAM CONSTITUTION

A

eg. 1936 Soviet Union grants citizens extensive rights but at the same time there is mass killing, prison camps, and people being arrested without trial

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1
Q

Constitutionalism Definition

A

idea that govt has defined, limited powers and that legitimate govt action must conform to legally based, formal processes based on the rule of law

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2
Q

Constitution Definition

A

A Set of Laws intended to shape the exercise of political and legal power. It governs the governors and overrides any other law

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3
Q

Functions of the constitution

A

Provides Govt Sovereignity
Sets fundamental values underlying system of govt
Establishes relationship between govt and citizens

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4
Q

Conventions of Parliament

A

unwritten rules on how parliament should function. No legal consequences to breach, only political. Very respected though
eg. PM.

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5
Q

Do we have Seperation of Powers?

A

Constitutionlly, yes. But in reality we have a system of responsible govt. This is a convention of parliament

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6
Q

Unitary System

A

Political Decisions concentrated in hands of a single central govt. Central may delegate to regional govt but they have no independant powers. Decisions can be overridden by central govt. EG. NZ,GB, France

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7
Q

Federal System

A

Sovereignity divided between central govt and two or more regional

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8
Q

Confederation

A

Weak central government. Only organise sovereign nations to achieve uniform policy on common issues

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9
Q

Coordinate/Dual Federalism

A

Central Govt clear authority on national issues, Regional everything else

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10
Q

Cooperative/Coercive Federalism

A

National Power = large scope bc of overall consensus between levels
OR
POWER CENTRAL “pulling regions in line”

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11
Q

WHAT DOES IT SAY ABOUT SENATE IN CONSTITUTION?

A

Section 7 - Equal number of Senators from each original state
Section 13 - Senators term 6 years. Elections for half senate every 3yrs
Section 24 - NEXUS CLAUSE. For every 2 members in HOR, 1 senator
Section 53 - Senate Same power as HOR, but cannot initiate or amend money bills

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12
Q

WHAT DOES IS SAY ABOUT HOR IN CONSTITUTION?

A

The people’s/popular house
House of Government - pass money bills such as supply bills
Section 24 - MHRs must be chosen directly by people. Each state has number proportional to pop BUT no original state can have less than 5

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13
Q

What does the constitution say about conflict between the houses?

A

Section 57 - If a bill originating from HOR is rejected and amended TWICE in THREE MONTHS a DOUBLE DISSOLUTION election can be called. After election - joint sitting over bill can be called.

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14
Q

What does the constitution say about the Executive?

A

Power is vested in Queen, Exerciseable by GG. (Section 61)

PM is not mentioned. They are interpreted in light of constitutional conventions of the inherited Westminster System

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15
Q

Most Significant Conventions of Parliament

A

Section 2 - “GG appointed by Queen” REALLY its the PM
Section 5 -“GG appoints times for holding parliament sessions and can dissolve” REALLY its the PM
Section 28 - “HOR runs for 3 years. GG dissolve earlier” REALLY its the PM but GG can deny
CHP 2 Sec 61-70 - Says how govt operate No mention of Cabinet, Parties, or PM
Section 61 - “Exec Power = Queen. Exerciseable by GG” REALLY its Cabinet and PM
Section 62 - “FEC chosen by GG and serve at pleasure” REALLY GG acts on advice from PM on who to choose
Section 68 - “GG leader of naval & military forces” REALLY its PM and Defense Minister
Section 72: HC Justices appointed by GG” REALLY its Cabinet and PM - GG just rubberstamps

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16
Q

GG’s Express Powers

A

Constitutional Powers of GG that by convention are exercised on behalf of the parliament. Fictional or Ceremonial Powers such as assenting to laws/opening parliament

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17
Q

GG’s reserve powers

A

Constitutional Powers of GG that may under certain circumstances be exercised on GGs own initiative. Most of constitutional powers of GG regarded as express that can only be exercised on advice of PM and FEC.
Reserve Powers = call election at hung parliament, dismiss PM vote of no confidence, Dismiss PM when acting unlawfully, refuse to dissolve parl despite PM request

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18
Q

What is responsible govt

A

“executive govt is drawn from legislative branch.”

Leg = Reps elected. Govt of Day = party with majority seats in HOR

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19
Q

Functions of High Court

A
  1. Section 73 - Determine appeals from decisions of any Aus Court
  2. Section 76 - Interp the constitution
  3. Section 75 - treaties, cases brought against commonwealth, legal disputes between states or residents of one state vs another

JUDGEMENTS ARE FINAL. has original jurisdiction over state vs state cases that originate within the court

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20
Q

Checks and Balances

A

Process by which one institution ensures the other institution is kept accountable.
HC keeps Exec accountable
JG Malaysian Solution - Send 800 boat people in exchange for 4000 proven refugees. HC intervened, they interpreted its unlawful, bc Aus under UN human rights charter. Malaysia isnt, so bringing in 4000 malaysian refugees is lawful.

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21
Q

Division of Powers

A

Exclusive/Concurrent and Residual. Fed/State and Local.

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22
Q

Exclusive Powers?

A

Section 90 - customs, excise, and bounty
Section 52 - exclusive powers to parliament
Section 86 - collection and control of duties to pass to commonwealth

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23
Q

Concurrent?

A

Section 51 - Census/statistics, fisheries, marriage

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24
Q

Residual

A

Not mentioned in constitution.
Section 107 - Saving Power of states
Section 108 - inconsistency of laws goes to fed

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25
Q

Finance and Trade Powers

A

Section 87 - First 10 yrs after constitution, commonwealth give 1/4 money to states to help. Hereafter commonwealth can decide use of revenue. Gave commonwealth financial powers. Caused VFI
Section 92 - commerce and trade in Aus “absolutely free”
Section 94 - distribute surplus revenue
Section 96 - Special Purpose Grants “do so under conditions as govt sees fit”

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26
Q

Types of constitutional Change and Reform

A 
referendums
interp by HC
Ref of Powers, Unchallenged Legislation
Financial powes
Constitutional Conventions/commissions
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27
Q

Referendum - Formal Constitutional Change

A

Section 128

  1. Initiation and passage of bill by fed parliament, setting out a referendum question
  2. Bills passed by both houses, or same house twice (after 3 months)
  3. After 3 months if both houses unable to agree w wording of Q, GG choose Q from all Q
  4. Assent by GG
  5. Q voted on w/in 2-6 months of passing
  6. TO PASS: Double Majority. 4/6 original states, 50%+1. IF relate to specific state/s, that voting pop must vote majority YES
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28
Q

What are successful referendums?

A

1928 state debts - loans council
1946 social services - insert sec51.23 Commonwealth centrelink
1967 aborigines - delete sec 127, insert sec51.26

8/44 sucessful

29
Q

Institutional factors affecting Referendums

A

Double majority too high a hurdle, esp 4/6 states.

1946 industrial employment ref: 62% YES, 3/6 YES

30
Q

Political factors affecting Referendums

A
  1. Which party in power —> do states support
  2. PM writes question/has most impact on Question presented
  3. BIPARTISAN SUPPORT?
  4. Opposition?
31
Q

Attitudinal factors affecting Referendums

A
  1. Apathy NO vote
  2. Distrust of politicians NO vote
  3. Confusion NO vote eg Multiple Questions (howard republic) or confusing wording
32
Q

Characteristics of a successful referendum

A 
BIPARTISAN SUPPORT
SOCIAL ACCEPTANCE OF IDEAS - GENERAL SUPPORT
EASY TO UNDERSTAND/WELL WORDED
LIMITED CHANGE PROPOSED
OBVIOUS BENEFITS TO STATES/VOTERS
33
Q

UNCHALLENGED LEGISLATION informal constitutional change

A

commonwealth pass laws outside const powers (cannot refer to a “head of power” in const
usually someone challenge in HC bc fed acted ultra vires
SOMETIMES states not challenge laws
Snowy River authority
Radio and TV Regulation

34
Q

REFERRAL OF POWERS informal constitutional change

A

matters referred to parliament of commonwealth by parliament of any state/s but so that law shal extend only to states who refer or adopt law afterwards

THIS ALLOWS STATES TO HAND ON RESIDUAL POWERS TO COMMONWEALTH

SA and TAS refer non metro railways in 1977
Vic refer industrial relations in 1997

35
Q

Constitutinal conventions and commissions informal constitutional change

A

write new :)

36
Q

HIGH COURT INTERPRETATION —- MAJOR FACTOR informal constitutional change

A

most important way of changing constitution because of difficulty of passing a referendum

doe not alter wording of constitution, but alters way in which it is read

HC can only act on cases brought before them, not independantly.

HC Decisions often affect balance of power:

  1. protect states from commonwealth power
  2. extend commonwealth financial powers
  3. extend other powers EG external affairs/corporations
37
Q

Original Intentions of Framers

A

State powers far outweigh commonwealth powers. This is why fed took so long.
Go in depth 106, 107, 108

38
Q

Federation Models

A 
Centralist = fed > state
Cooperative = fed = state
Coordinating = state > fed
39
Q

Reasons for change in federal balance

A

Changes in society - well developed commercial, industrial transport and communication structures

Issues like environment is nationwide concern

40
Q

Cooperative Federalism

A

Voluntary arrangements between the commonwealth govt and state govts to take common administrative or legislative action

1992 - establishment of COAG
1996 GUN LAWS mirror legislation intro by state and fed govts across Australia
gonski

41
Q

COERCIVE FEDERALISM

A

an imbalance of power in a federal system where the central authority effectively dominates the regional govt

42
Q

Whitlam Govt

A 
COERCIVE.
tried to bypass states
60% increase in tied grants
new and controversial interp of const.
states resented. contributed to whitlam downfall
43
Q

Hawke Govt

A

COOPERATIVE.
More consensual approach
intro COAG and MINISTERIAL COUNCILS
National competition policy/national standard

44
Q

Keating Govt

A

COERCIVE but a lil coop
More willing to override states
Tied grants grew
Continuation of many Hawke innovations - dual federalism w joint and seperate activities

45
Q

HOWARD govt

A

COERCIVE CENTRALISM.
increase tied grants.
WORK CHOICES.
deterioration of COAG

46
Q

RUDD AND GILLARD

A 
new era COLLABORATIVE FEDERALISM
elected on promise 'end the blame game'
increase in COAG meetings
Overhaul of fiscal federalism
Overhaul of state responsibilities
"cooperative" centralist
47
Q

Sources of Prime Ministerial Power

A

Party Politics and CMR

48
Q

Cabinet

A

Committee of senior politicians selected from the party responsible for directing govt policies. Political executive, responsible for taking initiative in govt and controlling admin. only senior ministers

49
Q

Roles of Cabinet

A 
Information exchange
Arbiter
Political decision maker
guardian of strategy
coordinator
allocator
crisis manager
accountability watchdog
50
Q

cabinet selection

A

PM “hand picks” cabinet ministers that are loyal (like minded on policy)
Eg. Howards cabinet unified and disciplined

51
Q

PMs Power over Cabinet

A
  1. PM sets agenda
  2. Kitchen Cabinet
  3. Party Solidarity/CMR
  4. PM selects and dismisses ministers
  5. First among equals in Cab
52
Q

PMs power over party

A
  1. Decides election dates
  2. PM performance impacts backbenchers ability to win elections/hold seats
  3. selects ministers
53
Q

How does electoral success of PM contribute to their enhanced power?

A

PM Primary focus of media attention
Elections are about choice between alternative PMS
PM unlikely to be publicly opposed during election campaign but likely to be ousted after election if they lose (keating 1996)

54
Q

How can a PMs Personality influence position as PM?

A

Fraser - AUTHORITY AND CONTROL. Ministers who felt powerless revolted (Peacock 1981)

Hawke - inclusive/wanted everyone to like him. seen as indecisive.

Howard - Party Unity and personal loyalty

Rudd - centralist and rude and insulting. dictorial. not a future thinker. two faced. DOWNFALL

55
Q

Main limitations to Prime Ministerial Power

A

• Cabinet through policy formation
• Political Rivals – EG ’13 Rudd & Gillard
• Political Parties: Ideologies; Labor Branches
Liberal Coalition
• Parliament: Senate, Role of the Speaker, Gag Orders
• GG : double dissolution, Decide Ref Question
• High Court can overrule govt decision – Gillard Malaysian Solution
• States: Health Care (WA yet to sign up), Better Schools Program (WA, QLD, SA not signed up)
• PM elected by party so can’t afford to get offside with them often
• State Branches – COAG, state diff party to fed
• Traditional Policy Direction for ALP came from party conferences

56
Q

what is the Opposition

A 
•	Second largest party in HOR
•	Even though opposition is formed in HOR, also sit in senate 
•	2013 – current: Labor: Bill Shorten
55 seats (HOR) 26 seats (senate)
•	2009 – 2013: Liberal: Tony Abbott
57
Q

role of the opposition

A 
Works to provide an alternative to govt actions and policies. In this capacity the opposition scrutinises the govt and seeks to hold them accountable for their decisions.
Opposition also called Alternative govt, as they nust be ready to form govt if they are voted in during following federal election
•	Legislative process
	Private Member Bills
•	Accountability
•	Opinion Polls
•	Provide Suitable alternative govt
•	“Work the Media”
58
Q

How does Opposition Scrutinise the Govt?

A 
•	Question Time! 
•	Legislative Debate
	“Grievances” 
•	Vote of no confidence
•	Reply Speech
Join forces with minor parties in Senate – Debate Govt legislation – Block Legislation
59
Q

How does the Opposition get back to being Govt?

A

Must provide a unified front with strong leader
Since 1980s Liberal has been in oppositoin twice and labor once
• Changing Leaders if theyre unpopular.

60
Q

Role of Opposition Leader

A
  • Provide alternate Prime Minister
  • Chairing weekly party meetings
  • Leading Development of Party Policy
  • Selecting opposition members and senators to be Shadow Ministers
  • Leading the team of shadow ministers – Shadow Cabinet
  • Acting as chief spokesperson for party inside + outside parliament
  • Presenting alternate policies to govt and Australian People
  • Leading Party in Election
  • Utilises expertise in community as an information and advisory source due to limitations of staffing and resources of an opposition
  • Represents his/her electorate
  • Not constitutionally recognised, the opposition leader is provided with a special salary, entitlements and facilites.
61
Q

reasons why tony pepperoni was a successful opposition leader

A

Within 7 months deposed K-Rudd

Worked really hard to dispose of CarbonTax

A lot of ministerial experience (9 yrs during Howard govt)

Low approval ratings for PM (JG) Abbotts fault?

62
Q

reasons why tony pepperoni was a bad opposition leader

A

> “Almost” beat labor in 2010 election. Often praised for this but “almost” is as good as getting thrashed
could not win support of 2 independents he needed
terrible approach to negotiations
parliament passed 420 bills and he couldn’t stop one, and he only needed to sway 2 votes. Or put through motion of no confidence
couldn’t prevent govt from implementing it’s program, let alone “frustrate labor’s ability to govern”
couldn’t force govt into early election, despite finely balanced numbers in house & poor approval ratings
one of the highest disapproval rating. Not well liked.
No signature policies. “stop the boats” “stop the Carbon tax” … not policies but slogans. NO positive agenda.

63
Q

LEGALISM definition and core principles

A

Conservative in nature. Believes that courts should strictly adhere to the literal meaning of law and constitution. The development of the law should be left to govt.
Judicial Legalism Believes:
1. Sep of powers: Parliament (exec and leg) makes the laws and courts enforce it in individual cases
2. Decisions of judges should be based on pre-existing legal norms
3. Judges should be guided by judicial restraint

64
Q

1979 SGIC vs Trigwell legalist case background

A

Under common law, owners of land adjoining a road owed no duty of care to road users and were under no legal obligation to fence in their animals to prevent them from straying onto the road. The principal was based on a longstanding British precedent dating back to when farms didn’t have fences and there was no major highways and cars
Precedent arised 1947 Searle vs wallbank;
Cyclist collides with horse in poorly lit area. Horse strayed from farm.
Cyclist wanted to sue. Farmer was negligent – knew fence was damaged.
BUT court upheld this common law principle
1978 Mr Brisbane vs Cross – challenged application of common law in Searle ws Wallbank
cow strayed on road, brisbane and his motorcycle was injured
Judge agreed farmer was negligent but Supreme Court ruled in favor of farmer due to common law

65
Q

1979 SGIC vs Trigwell legalist case

A

SGIC = insurance company of deceased driver
Trigwell sued for damages, under negligence. A)
a) Driver (action bought against SGIC)
b) farmers fault for failing to ensure his livestock didn’t escape
Supreme court: Insurance company had to pay but farmer wasn’t responsible.
Appealed to HC: LEGALIST point of view
Justice Murphy, in dissent stated that the farmer was liable.

New Legislation intro 1984 Wrongs act (Animals straying onto highways act)

66
Q

Activism definition and core principles

A

Court decisions made by HC that reflect the current values of society and formulates precedence. Activist decisions do not believe we should follow literal meaning of law/constitution.

  1. Creativity in judgements in superior courts is inevitable
  2. Parliament fails to bring law up to date or resolve legal disputes, thus leaving task to courts
  3. Judges can legitimately consider policy based on enduring community values
  4. Concerns that the court acting as a de facto parliament are misplaced as parliament can legislate to overturn judicial decision
67
Q

MABO 1992 (early 90s period of activism)

A

1778 “terra nullius”
1836 – QLD govt says only formal land rights = crown
1971 – grove land rights case; HC found
Torres Strait island + Mabo vs QLD State Govt.
1985 – gov pass QLD coastal islands delatory act reinforce ctrl of murray islands in Torres Strait. Mabo claimed act was discriminatory. QLD govt relied on principle of terra nullius.
1992 – HC in favor of merriam people. 71 and 85/2 courts found in favor of Terra Nullius
aCAUSED COMMON LAW RIGHTS TO NATIVE TITLE. HAD TO PROVE U WERE LIVING THERE LOTS.
ACTIVIST BECAUSE IT REJECTS THE SET LEGAL PRINCIPLES AS INCONSISTENT WITH UNDERLYING VALUES OF MODERN SOCIETY.
GOVT THEN MADE NATIVE TITLE ACT 93 WHICH MADE STATUTE. OVERRULE TERRA NULLIUS,

WIKI DECISION- RIGHTS TO PASTORAL LAND ON CERTAIN CONDITIONS

68
Q

ten point plan

A
  1. National Native Title tribunal holds absolute authority over claims for native title
  2. State govt are empowered to extinguish native title over crown lands for matters of national interest
  3. Lands providing public amenities are exempt from claims
  4. Mining and pastoral leases are allowed to coexist with native title
  5. Nntt can create traditional lands rather than granting full native title
  6. A registration test is imposed on all claimants
  7. The right to claim native title in or around urban areas removed
  8. Govt permitted to manage land , water, or air issues on any site
  9. Very strict time limits will be placed on all claims
  10. Indigenous land use agreements will be created to promote co-existence
69
Q

National News 92 case activist

A

Constitutional Case –> implied rights.
Entrenched rights: actually stated
Implied rights: not mentioned, but interpreted
1992: Trying to add in IIID into broadcasting act 1942
Constitutional validity of part IIID of broadcasting act 1942
Broadcast political ads free of charge + regulate political advertising
Implied right = political communication. Broadcasting act Goes against this.

Activist bc implied and goes against
Plaintiffs said: New laws interfered with right of free political speech implied in constitution. Argued parts of act requiring broadcasters to give free time to certain people was an unjust acquisition of property.

70
Q

whitlam dismissal

A

Gough Whitlam – PM : 1972 came into power after 23 years of Lib/Nat control
Sir John Kerr – G.G.
Malcolm Fraser – Opposition (later= caretaker PM)
• ’74 – first double dissolution – put Whitlam back into power but with a hostile lib senate
• 2 Labor Senators – one dies and one leaves: Replaced by non-labor reps! Sir Biachi Peterson (queensland premier)– put in Anti Labor Unknown Albert Patrick Field
• Loan’s Affair issue
• 1975 Nov – sending supply bills but kept being rejected by Lib Ctrl Senate
• Fraser says he will only pass supply bill if Whitlam calls an election
• GG discussed w Fraser if he agreed to issue supply bill he would dissolve parliament (11 Nov 75) and dismiss Whitlam and appoint Fraser as caretaker govt.
• GG used reserve powers.

Politics (4 decks)

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