Semester Two Examination Flashcards
Abrogate
To overrule. Statute law can overrule common law because parliamentary law is superior to judge made law. It is a mechanism available to the parliament to hold the courts to account.
Absolute majority
The required majority to win in a preferential voting system; a majority of 50% +1 of all formal / valid votes.
Absolute monarchy
A form of government in which the head of state is in an inherited position with powers that are unlimited by any constitution or constitutional conventions.
Accountability
Being responsible for one’s conduct, decisions or in(actions). Accountability is an essential feature of responsible parliamentary government and applies to both elected and appointed public officials.
Act (of parliament)
A piece of legislation following its passage through both Houses of Parliament and being granted royal assent. A bill becomes an Act. Also known as statute or legislation.
Adjudicate
To hear a dispute and resolve it according to law or precedent. The decision of the courts has the force of law and binds the parties to the decision.
Adversarial system
The trial system used in common law countries. The belief that justice is best achieved through a “battle of words” between two adversaries.
Adversarial system of trial
The system of trial based on the assumption that the truth is best discovered by contest between the parties in the dispute. Competition brings out the best evidence and argument before an impartial adjudicator. It developed in England over many centuries which were former British colonies, including Australia ad the United States.
Altruistic groups
Cause groups, such as the Australian Conversation Foundation (ACF) and People for the Ethical Treatment of Animals (PETA).
Amendment
A proposed change to a bill being debated in parliament during the committee stage of the legislative process and/or a change to an existing Act.
Appeal
A review of a court case by a higher court. A form of judicial accountability exercised by courts over other courts.
Appellate jurisdiction
The type of cases or areas of law which a court has the power to hear “on appeal” from another court. Original decisions can be reviewed and reversed if found to be wrong. Judges and courts are held to account through the appeals process.
Appropriations
Money spent by the executive government. The parliament must pass “appropriation bills” before the government can access and spend public funds. Also known as “money bills”, this type of bill can only be initiated or amended in the HOR. This is a key way in which the parliament carries out its “responsibility function”. Also referred to as supply.
Arbitration
A form of alternative dispute resolution in which a neutral third party (an arbitrator) assists two disputing parties to find common ground and resolve their disputes. The focus is to settle the dispute through a formal contract agreement between the parties. If the parties cannot agree to a resolution the arbitrator can decide for them. The third party arbitrator has more power than a mediator or conciliator, neither of which can impose a resolution. Arbitration is used to resolve industrial disputes between employers and employees. For sample, the Fair Work Commission.
Assistant minister
A junior ministerial (executive) position formerly known as a “parliamentary secretary”. They assist senior ministers in the larger portfolios.
Autocracy
A form of government in which political and legal power is unlimited by any constitution or constitutional conventions. The operating principles of a liberal democracy are not applied. An autocracy is characterised by the rule by law (not rule of law), concentration of powers, lack of checks and balances, and a politicised judiciary. An autocracy can take on many forms, such as an absolute monarchy, one party rule and dictatorship.
Backbencher
A member of parliament who is not in Cabinet or the ministry (the executive). This includes both the government front bench and this opposition shadow front bench.
Balance of power
The situation in which a political party or an individual may use their position in the chamber and vote to decide the fate of a bill or a motion. This is commonly held by minor parties and independents in the Senate. These parties and independents are referred to as the Senate cross bench.
Balance of probabilities
The standard of proof that is required in a vigil dispute. The adjudicator will rule on liability according to the degree of probability as to whose version of the facts is more likely.
Beyond reasonable doubt
The standard of proof that is required in a criminal dispute. It is the responsibility of the prosecution to prove there is no rational doubt as to the “guilt” of the defendant, otherwise the charge has not been proven. Beyond reasonable doubt is a higher standard of proof than balance of probabilities.
Bicameral
A legislature composed of two houses or chambers, an upper house (of review) and a lower house (of the people).
Bicameralism (strong)
A legislature with two houses of equivalent power. Australia and the US have strong bicameralism.
Bicameralism (weak)
A legislature with two houses of unequal power, the upper house being the weaker of the two. Britain has weak bicameralism.
Bill
A proposed statute law. Parliament passes bills into law using the statutory process. A bill becomes law after the Governor-general gives it royal assent.
By-election
An election held in one lower house electorate for the purpose of replacing a member of the HOR who has vacated the seat between general elections.
Cabinet
A committee of the executive comprising the Prime Minister and his/her senior ministers. It is governed entirely by convention and has no legal or constitutional authority. Despite this, it is the most powerful institution in the system of government.
Cabinet secrecy
A Westminster convention of collective ministerial responsibility that requires the deliberations and discussion of Cabinet to be confidential. It allows for robust and frank discussion within Cabinet by its members. It also allows Cabinet to reach a single position and present itself as a united government (cabinet solidarity).
Cabinet solidarity
A Westminster convention of collective ministerial responsibility that requires the Cabinet to present itself as a united government. All ministers are bound by the convention to publicly support the Cabinet’s position on all issues. If a minister cannot publicly support Cabinet he or she is required, by convention, to resign.
Caucus
The party room of the Australian Labor Party (ALP). It consists of all the parliamentary members of the ALP, that is, all ALP Members of the HOR and Senators. Caucus is the critical forum of political strategy and debate. It largely determines the party leadership. Caucus is bound by a pledge to support AP policy, which i s largely set by the party’s National Conference held every 2 years. Caucus and the ALP leadership are very influential over the ALP’s policy.
Cause groups
Pressure groups focused on a particular “cause” that they believe is a general community good. Also known as altruistic or promotional groups.
Checks and balances
A system by which the powers of one arm or branch of government limits the powers of the other arms of government. Complementary to the doctrine of the separation of powers.
Chief Justice
The head and most senior judge in a court hierarchy. Chief Justices have an accountability role, ensuring that the courts and judges within their court hierarchy are exercising judicial power appropriately. Their power over other judges is very limited because of judicial independence, which applies not only to a judicial system, but also to the individual judges within it.
Citizens
The inhabitants of a sovereign nation state (and a state within a federation) who possess political rights and freedoms, participate in their own government and enjoy protection of these rights by law. Citizens also enjoy legal rights protecting them from the arbitrary use of power.
Civil trial
A trial in which a private party is the plaintiff and the defendant is accused of a civil wrong. The burden of proof rests with the plaintiff. The defendant is presumed innocent and is protected by legal rights.
Coalition
when two or more political parties form an alliance. At federal level, the Liberal Party and the Nationals form a coalition to form government.
Collective ministerial responsibility
a Westminster convention of responsible parliamentary government by which an entire executive government may be held to account by the HOR. This is a part of parliament’s “responsibility function”.
Committee
A subset of parliamentarians formed into a working party or group for a particular purpose. Some committees are established for the life of a parliament (standing committees). Others are formed for a particular purpose and then disbanded after reporting to parliament (select committees). They may be formed in either house or parliament (House committees and Senate committees) or by members of both houses (joint committees). Committees are essential for the parliament to carry out all its functions, especially the legislative responsibility and debate functions. No executive member may serve on a committee, so only backbenchers fulfil the work of committees.
Common law
Judge made law. Made in courts by judges when deciding cases which give rise to the need for new decisions or precedents. Common law is inferior to statute law.
Commonwealth
Sovereign central government within the Australian federation. It is created by chapters 1, 2 and 3 of the Constitution, which establish the three separate branches of the central government. It came into being at Federation on 1 January 1901. Its exclusive and concurrent powers are specified and enumerated in the Constitution.
Commonwealth Parliament
The institution in the Australian political system and represents the people and the states. It makes the laws, makes and may break the government, and debates the important issues of concern to the nation. It is sovereign and the foundation of Australian representative democracy.
Compulsory voting
A part of the Australian electoral process that requires all eligible Australian citizens to “vote”. They ar required to attend a Polly place on Election Day or before (pre-polling) or return ballot papers by postal voting. A fine is the penalty for not voting.
Concurrent power
Power granted by the Constitution to the Commonwealth and state parliaments. They are shared powers. Section 109 invalidates state laws that conflict with Commonwealth laws, to the extent of the inconsistency.
Conscience vote
A type of voting where parliamentary members are given the right to use their judgement on a matter before the parliament. They are also known as “free votes” as members of parliament are not constrained by political party policy or party discipline.
Constituency
The alternative name for an electorate or electoral district in which voters are located. For example, Stirling is a federal electorate or constituency in WA. This term for electorates is rarely used in the Australian political system.
Constitutional monarchy
A form of government in which the head of state is an inherited position with powers limited by a written constitution or by unwritten constitutional conventions.
Constitutionalism
The idea that power should be limited. Democratic constitutions are founded on this idea. The opposite of absolutism.
Conventions (constitutional rules)
Westminster conventions of responsible parliamentary government. For example, the Prime Minister must be a member of the lower house.
Court
The main institution of the judicial branch of government. An institution that aims to resolve disputes according to law. In common law countries courts can create common law according to the doctrine of precedent and are organised in a court hierarchy.
Court hierarchy
A ranked order of courts. Courts are arranged in order (from lowest to highest) of inferior, intermediate and superior courts. Each level has original jurisdictions granted by various judiciary Acts, or in the case of the High Court, but the Constitution. Minor civil, criminal and administrative law matters are heard at lower levels. Serious and complex matters are heard at higher levels. Intermediate and superior courts have appellate jurisdiction. Court hierarchies are essential for the distribution of the work lard of the courts, for specialisation of courts, for the appeals process to work and for the doctrine of precedent to operate. In WA, the lowest court in the hierarchy is the Magistrates Court, an intermediate court is the Distinct Court, and a superior court is the Supreme Court of WA.
Criminal trial
A trial in which the State is the prosecuting party and the defendant is accused of a crime. He burden of proof rests with the prosecution. The defendant is presumed innocent and is protected by legal rights.
Crossbench
The term used to describe members of a House of Parliament who are independents or not members of a major or governing party. They sit in the U shaped benches opposite the Speaker of the HOR or President of the Senate. In the Senate, cross benches can exercise great political power because they may hold the “balance of power”. Cross benches are less influential in the HOR unless the government is a minority government.
Crossing the floor
During a division a member of a party may physically cross to the other side of the chamber to vote with other political parties. When members vote they usually vote with their party, but they may choose to vote against it in exceptional circumstances.
The Crown
The term used to describe the British and Australian constitutional monarchy. It is represented in Australia by the Governor-General. The Crown is part of both the parliament and the executive in Australia’s Westminster system of government.
Defendant
In either a civil or criminal case, this is the party that is defending the charge. They have the presumption of innocence unless proven liable / guilty.
Delegate (representation)
A theoretical form of representation in which the elected representative simply reflects their electors’ concerns and values in the parliament. The representative is simply a “mouthpiece”. Part of parliament’s “representative function”.
Delegated legislation
Law making power granted by the parliament to the executive. Executive made laws are called regulations, ordinances or instruments. To avoid a breach of the separation of powers the parliament closely monitors the executive’s use of delegated legislative power. The Senate Regulations and Ordinances Committee oversees regulations, ordinances and instruments. The Senate may pass “disallowance motions” which annuls that law or a part of the law.
Deliberate
To decide by careful and considered processes. Ideally, the way the parliament should debate and legislate.
Deliberate vote
A vote used to resolve a deadlocked vote in the negative. The President of the Senate possesses a deliberative vote. In the event that the Senate is deadlocked the President always votes against the motion. The Senate is a house of review. The deliberative vote is a cautionary vote designed to ensure a motion is reconsidered by the Senate before passing. This is in contrast with the “casting”’ vote which is employed in the lower chamber when the votes are tied. The Speaker has the casting vote.
Democracy
A system of government based on popular sovereignty (the will of the majority). It’s key operating principle is majority rule.
Democratic socialism
A progressive political ideology on the left of the political spectrum. Under democratic socialism, government should use the power of the State to nationalise key parts of the economy and provide for the basic economic equality and outcomes for all citizens. Socialism is achieved through democratic recesses and not violent revolution. The early ALP (prior to the Whitlam years) is an example of a democratic socialist party.
Direct action
The act to taking action to draw attention to a cause or an issue. Direct action can be protesting and writing letters.
Direct democracy
A system of government in which citizens govern themselves by personal participation in law making. Referenda and plebiscites are a modern mechanisms of direct democracy.
Division
A formal vote in either House of Parliament. Members move to one side of the chamber or the other to vote in favour or against a motion. Members may cross the floor to vote with another party.
Division of power
In a federation the powers of each level of government are divided. Some are exclusive to the federal level, some are shared by the federal and sate levels of government, while the states also retain power they enjoyed prior to federation.
Doctrine of precedent
The method by which common law is made by judges in courts. It was developed in England nd is based on the principle of stare decisis - “to stand by the previous decision”. It operates within a court hierarchy in which previous decisions either bind or persuade future judgments where the facts of a case are similar.
Dorothy Dixer
A question asked by a government backbencher to a government minister. They are “friendly” questions giving a minister the opportunity to speak about a matter favourable to the government. The opposition front bench and opposition backbenches are more likely to ask genuine questions enquiring into the activities of government. Dorothy Dixers diminish the responsibility role of parliament and support the decline of parliament thesis.
Double dissolution
The governor-general may dissolve the parliament using powers under Section 57 of the Constitution if the two houses cannot agree on a bill. A bill which is twice rejected by, or fails to pass, the Senate may become a trigger for a double dissolution election. Section 57 powers are always exercised on the advice of the Prime Minister. The last double dissolution was the 2016 federal election.
Double majority
The requirement for a successful referendum to change the Constitution. It is made up of a democratic majority (a majority of Australian voters) and a federal majority (a majority of voters in a majority of states).
Economic liberalism
An economic/political ideology on the right of the political spectrum. It strongly advocates the view that the market is the best means of achieving economic growth and wealth, and that the life outcomes people enjoy are the result of their own effort and talent. It does not support a strong role for government in the provision of the basic economic needs for disadvantaged citizens, relying instead on family obligations and charity to meet these needs. The “dries” of the Liberal Party are examples. John Howard was an economic liberal.
Ejusdem generis (“of the same kind”)
Used to interpret legislation. When a list of specific items is followed by a general term, it is implied that the general term will be of the same kind as those listed previously.
Elections
A process enabling citizens to choose representatives to sit in a representative legislature and act as their delegates or trustees in law making. This is an essential procedure of representative democracy.
Electoral system
A system that translates votes into the desired leadership outcome of the people. Most often used to translate votes into seats in parliament. They may be based on single-member electorates or multi-member electorates. Electoral systems are classified as either majoritarian or proportional or a blended compromise of both.
Electorate
A geographical area in which citizens vote to elect a representative and, subsequently, a parliamentarian who represents them in parliament. An electorate can be small or large and vary in its representative purpose. An electorate is also known as a “division” and colloquially as a “seat” in parliament.
Electorate (number of)
In the HOR, from the 2019 federal election there will be 151 electorates distributed between the states in accordance with population (following the requirements of Section 24). In the Senate there are 8 electorates (one for each state and the territories).
Entitlement
Possessing a right to something.
Equality of political rights
A key operating principle of a liberal democracy. All citizens shall be equally entitled to political rights. Political rights include the right to vote, the right to run for political office and the right to participate in government.
Exclusive by their nature
Concurrent powers which are appropriate only for the Commonwealth to exercise, despite the Constitution not making them exclusive. Section 51(vi) the defence power is an example.
Exclusive powers
Powers granted by the Constitution to the Commonwealth Parliament alone. they may be legislative or financial powers. For example, Section 52 grants power “to make laws for the peace, order and good government of the Commonwealth with respect to…”
Executive
The branch of government responsible for the execution or administration of laws made by the legislature. Often simply referred to as “the government”. Australian executives are composed of 3 parts - a “constitutional” executive (the Queen, governor-general and the federal executive council); a Cabinet of ministers drawn from parliament and led by the Prime Minster; and the public service. The Cabinet is the “real” executive and is led by the Prime Minister as Head of Government. The executive may be delegated limited law making powers by parliament, but remains subject to the parliament. Each state and territory of the Australian federation has its own executive.
Exhaustive preferential voting
A preferential voting system in which an elector must number all of the candidates on the ballot paper - they must “exhaust” all the preferences. Exhaustive preferential voting is used in Commonwealth and WA elections.
Ex post facto
Latin for “after the fact”. Judgements made by the courts are done so after the dispute has occurred.
Express powers
Powers codified in the Constitution. The governor-general possesses express executive powers. The Commonwealth Parliament possesses express legislative and financial powers.
Expressio unius est exclusio alterius (“the express mention of one excludes all others”)
A maxim of statutory interpretation in which a series of specific terms is not followed by a general term. The express mention of objects in a statute precludes the edition of any other objects by the courts. It prevents the courts frorm declaring meanings of a law that the parliament does not intend. The opposite of ejusdem generis - there is no class of object to which the courts can assign other instances of similar objects.
Federalism
A system of government in which sovereignty is geographically divided between one central and two or more regional governments, each sovereign within their own sphere. There are different types of federalism which indicate the power distribution between the levels of government. Coercive federalism is where the federal level has greater powers than the states; co-operative federalism is where both levels work together to achieve outcomes; and co-ordinate federalism, which is where each level is independent and autonomous of the other. This was intended by the Founding Fathers at the time of federation.
Federation
The act of becoming a federation. In Australia this involved the uniting golf 6 previously separate colonies into one “indissoluble federal Commonwealth”.
Federation chamber
A special committee of the House of Representatives. It’s membership comprises. The whole of the house and, therefore, all Members of the House of Representatives. It passes non-controversial bills with minimal debate or scrutiny, by agreement between all parties. It’s purpose is to speed up the passage of bills and free up the house to consider more contentious or contested bills.
First past the post electoral system (FPP)
A majoritarian electoral system based on single-member electorates in which electors select the one candidate of their choice. The winner is the candidate with a simple majority of votes. It was used in Australia for electing both the House of Representatives and the Senate prior to 1919. It is still used for many local government elections in contemporary Australia.
Floodgating
A tactic employed by the government to rush through parliament a substantial amount of legislation, usually toward the end of a parliamentary sitting term. Standing orders can be manipulated by the government of the day to allow for minimal debate using the guillotine.
Formal vote
A ballot paper that has been completed correctly following the rules of the electoral system.
Franchise
Described generally as the “right to vote”. Australia has universal franchise that includes Australian citizens who are over the age of 18 years.
Fundamental law
Constitutional law. Superior law.
Gag
A motion passed in a House of Parliament to curtail further debate. This is used to end debate by a member (usually a minister) requesting that “the motion now be put”.
