Semester Two Examination Flashcards
(231 cards)
1
Q
Abrogate
A
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.
2
Q
Absolute majority
A
The required majority to win in a preferential voting system; a majority of 50% +1 of all formal / valid votes.
3
Q
Absolute monarchy
A
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.
4
Q
Accountability
A
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.
5
Q
Act (of parliament)
A
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.
6
Q
Adjudicate
A
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.
7
Q
Adversarial system
A
The trial system used in common law countries. The belief that justice is best achieved through a “battle of words” between two adversaries.
8
Q
Adversarial system of trial
A
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.
9
Q
Altruistic groups
A
Cause groups, such as the Australian Conversation Foundation (ACF) and People for the Ethical Treatment of Animals (PETA).
10
Q
Amendment
A
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.
11
Q
Appeal
A
A review of a court case by a higher court. A form of judicial accountability exercised by courts over other courts.
12
Q
Appellate jurisdiction
A
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.
13
Q
Appropriations
A
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.
14
Q
Arbitration
A
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.
15
Q
Assistant minister
A
A junior ministerial (executive) position formerly known as a “parliamentary secretary”. They assist senior ministers in the larger portfolios.
16
Q
Autocracy
A
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.
17
Q
Backbencher
A
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.
18
Q
Balance of power
A
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.
19
Q
Balance of probabilities
A
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.
20
Q
Beyond reasonable doubt
A
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.
21
Q
Bicameral
A
A legislature composed of two houses or chambers, an upper house (of review) and a lower house (of the people).
22
Q
Bicameralism (strong)
A
A legislature with two houses of equivalent power. Australia and the US have strong bicameralism.
23
Q
Bicameralism (weak)
A
A legislature with two houses of unequal power, the upper house being the weaker of the two. Britain has weak bicameralism.
24
Q
Bill
A
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.
25
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.
26
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.
27
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).
28
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.
29
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.
30
Cause groups
Pressure groups focused on a particular “cause” that they believe is a general community good. Also known as altruistic or promotional groups.
31
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.
32
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.
33
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.
34
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.
35
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.
36
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”.
37
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.
38
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.
39
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.
40
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.
41
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.
42
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.
43
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.
44
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.
45
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.
46
Constitutionalism
The idea that power should be limited. Democratic constitutions are founded on this idea. The opposite of absolutism.
47
Conventions (constitutional rules)
Westminster conventions of responsible parliamentary government. For example, the Prime Minister must be a member of the lower house.
48
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.
49
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.
50
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.
51
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.
52
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.
53
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.
54
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.
55
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”.
56
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.
57
Deliberate
To decide by careful and considered processes. Ideally, the way the parliament should debate and legislate.
58
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.
59
Democracy
A system of government based on popular sovereignty (the will of the majority). It’s key operating principle is majority rule.
60
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.
61
Direct action
The act to taking action to draw attention to a cause or an issue. Direct action can be protesting and writing letters.
62
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.
63
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.
64
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.
65
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.
66
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.
67
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.
68
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).
69
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.
70
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.
71
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.
72
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.
73
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.
74
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).
75
Entitlement
Possessing a right to something.
76
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.
77
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.
78
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…”
79
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.
80
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.
81
Ex post facto
Latin for “after the fact”. Judgements made by the courts are done so after the dispute has occurred.
82
Express powers
Powers codified in the Constitution. The governor-general possesses express executive powers. The Commonwealth Parliament possesses express legislative and financial powers.
83
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.
84
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.
85
Federation
The act of becoming a federation. In Australia this involved the uniting golf 6 previously separate colonies into one “indissoluble federal Commonwealth”.
86
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.
87
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.
88
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.
89
Formal vote
A ballot paper that has been completed correctly following the rules of the electoral system.
90
Franchise
Described generally as the “right to vote”. Australia has universal franchise that includes Australian citizens who are over the age of 18 years.
91
Fundamental law
Constitutional law. Superior law.
92
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”.
93
Gerrymander
The deliberate drawing of electoral boundaries to disadvantage a political opponent. It does not occur in Australia because the Australian Electoral commission (AEC) draws the boundaries according to the Electoral Act 1902. This is still a prominent feature of the US House of Representatives electoral districts.
94
Golden rule
A rule of statutory interpretation in which the courts seek alternative meanings of a word in a statute if the literal meaning results in absurd or unjust outcomes.
95
Government
In the broad sense, the political and legal system of a nation state. In the narrow sense, the executive branch within a political and legal system.
96
Governor-general
The representative of the monarch in Australia. Established by Section 61 of the Constitution and exercising the executive power of the Commonwealth, which is formally vested in the Queen. Powers are bound by unwritten Westminster Constitutional conventions. The Governor-general possesses express, formal and reserve powers.
97
Guillotine
A motion passed in a House of Parliament to impose a time limit on debate of a piece of legislation that has been declared “urgent” by the government. This motion is a tactic used to rush legislations through the parliament with little debate.
98
Hansard
The written record of debates in parliament, including committee hearings. The official record of the business of parliament. When interpreting statutes, to ascertain the purpose of a statute courts may refer to Hansard, especially the second reading speech for the relevant bill.
99
High Court of Australia
The highest court in Australia. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court and other federal courts the parliament may create. It has original jurisdiction over the interpretation of the Constitution and has been the major agent of constitutional change since Federation. It has appellate jurisdiction for all matters from all Australian lower courts. It is at the apex of the Australian court hierarchy.
100
House of Representatives
The lower house of the Commonwealth Parliament. Section 24 of the Constitution states the House of Representatives must be “directly chosen by the people”. It is the people’s house (representative role) and the house of government (responsibility role). Currently there are 150 members of the House of Representatives, but as from the 2019 general election there will be 151 seats.
101
How to vote card
An exemplar illustrating the preferred voting selection for both Houses of Parliament as determined by a political party. These are handed out by volunteers on behalf of a political party at polling places on Election Day. They act as a guide for voters on how to cast their votes. They can be strategically used to influence the outcome of an election in specific electorates.
102
Human rights
The set of social, economic, civil, political, legal and other rights to which human beings are universally entitled.
103
Hung parliament
A parliament in which no party attains more than 50% of the seats in the lower house. By convention, the previous government (incumbent) has the first opportunity to attempt to form government. If unsuccessful, other alliances of parties and independents may try to form a minority government. The last hung parliament at the federal level was the 43rd parliament in which the minority Gillard Government (2010) was formed by the ALP and a number of independents who agreed to support the government on confidence motions and supply.
104
Hybrid pressure groups
Pressure groups combining the features of “cause” and “sectional” pressure groups, for example, the Returned and Services League (RSL).
105
Ideology
A coherent set of believes about how society and the economy ought to be organised. Politics is often a contest between different ideological viewpoints. Political parties are formed by people with shared ideological views.
106
Independence
The quality of being free from interference or influence by others. This is an essential feature of the judicial arm of government as required by the rule of law. Independence is a critical requirement for accountability. For example, the Auditor General is independent of the executive into which he/she conducts reviews and reports on to parliament. A lack of independence may lead to a loss of public confidence in investigate or accountability bodies.
107
Independent MP
A member of parliament who is not a member of a political party. A delegate or trustee, but not a partisan representative.
108
Indictable offence
A serious criminal offence that is generally adjudicated in an intermediate or superior court, and where the defendant is afforded a trial by jury.
109
Individual ministerial responsibility
A Westminster convention of responsible parliamentary government by which a minister may be held to account by the House of Representatives. Part of the parliament’s “responsibility function”. Note, the Senate is not held to the same level of responsibility of individual ministerial responsibility due to its origins from the US system.
110
Informal vote
A ballot paper that has not been completed correctly. The vote has been cast in a way that does not follow the rules of the electoral system. For example, in an exhaustive preferential voting system, if al candidate boxes are not numbered, if there is repetition of the same numbers or if only one candidate has been asked, this is an informal vote. Ballot papers that breach “secret voting” are also informal votes.
111
In futuro
Latin, meaning “for the future”. Statute laws are made as rules to guide untrue actions or events. They act to guide the law from their date of proclamation. In contrast to common law which is ex post facto.
112
Inquisitorial system
The trial system used in civil law countries such as Indonesia or France.
113
Inquisitorial system of trial
A system of trial based on the assumption that the truth is best discovered through inquiry by an expert impartial adjudicator. It developed in Europe from Roman civil law over many centuries and is practiced in many countries that were former European colonies, including Indonesia and many South American countries.
114
Interpretation
To decide the meaning of a text. Laws and the constitutions are text documents. They are capable of alternative readings and meanings. Disputes about the meaning of statute law or constitutional law are resolved by courts with original jurisdiction over the specific law concerned. When deciding the meaning of a law a court is “declaring the law”. Interpretations of law become part of the common law and change the meaning of the statute until a new interpretation is made or the parliament amends the statute. Constitutional interpretations made by the High Court cannot be reviewed or changed by the parliament or the government without a referendum, and may fundamentally alter the Australian federation or the rights of Australian citizens. This is also referred to as statutory interpretation”.
115
Joint committee
A parliamentary committee formed of Members of the House of Representatives an Senators, such as the Parliamentary Joint Committee on Human Rights.
116
Joint sitting
Where all members from both the Senate and the House of Representatives are called upon to sit and resolve a matter in parliament. These may result from a Section 57 deadlock where legislation has failed to pass through a chamber twice within a period of three months. The first and only joint sitting ever held since federation was in 1974.
117
Judicial discretion
The freedom of a judge to decide an appropriate outcome for a particular case within the bounds of the law. It is important for adjudication and the exercise of judicial power. It is a component of judicial independence and, therefore, also the rule of law. However, it can be limited by parliament tightening the bounds of the law, as in mandatory sentencing laws. Such limits can be seen as controversial intrusions on judicial independence.
118
Judicial independence
A key democratic principle. The judiciary must be completely free from interference and influence from the parliament, the government or any other institution or person. It is a vital component of the rule of law.
119
Judicial power
The power to adjudicate. To make decisions that have the force of law. To make legally binding decisions. The power exercised by courts.
120
Judiciary
The branch of government which adjudicates imputes by interpreting the laws and applying them to specific circumstances in cases heard in courts. An appointed, not elected, arm of government. The independence of the judiciary is crucial to the rule of law. The Australian judiciary is organised into federal and state court hierarchies.
121
Judge
The adjudicator in a trial. The main office in the judicial arm of government. Judges are protected against undue influence from government or other parties by constitutional law that guarantees their independence.
122
Jury
A panel of citizens who judge the facts of a court case. They hear evidence and argument presented byt he parties to a case and take direction from a judge. They decide the verdict of guilt or innocence.
123
Law
The highest form of social control. Law may be seen in inferential parts of the political and legal system. In order of superiority, Australian law maybe be constitutional, statutory, common and subordinate.
124
Leader of the Opposition
The leader of the party with the second largest number of seats in the House of Representatives. The leader of the alternative government.
125
Legal representative
A person, usually with legal training, who represents a party in an adversarial trial.
126
Legislature
The branch of government which makes law by initiating, debating, amending or abolishing statutes via the statutory process. May be unicameral or bicameral. In Australia, the Commonwealth legislature is a bicameral parliament composed of the House of Representatives, the Senate and the Crown. each state and territory of the Australian federation has its own legislature.
127
Liberal
A political philosophy based on the primacy of the individual. It is the basis to rights to which individuals are entitled. Democracy is the only form of government compatible with liberal philosophy because it is based on the sovereignty of individual citizens to govern themselves.
128
Liberal democracy
A system of government which is based on both popular sovereignty (the will of the majority) and the respect and protection of rights.
129
Literal rule
A rule of statutory interpretation in which the courts apply the standard dictionary definition of a word in a statute. The courts are to use the “ordinary” meaning of the language within the statute.
130
Lobbying
The act of making direct contact with a decision maker within the political system in an attempt to influence policy and law making. Decision makers who are lobbied include ministers, parliamentarians, and senior public servants. There is a code of conduct and register of lobbyist to ensure that the influence of lobbyists on government is transparent. Lobbying is a common strategy employed by sectional pressure groups who have access to decision makers.
131
Major party
A political party capable of winning a House of Representatives majority in their own right or in coalition with a minor party during an election. A party capable of forming government.
132
Majoritarian electoral system
Type of electoral system that amplifies the number of seats the election winner receives relative to the number of votes they won. The percentage of the total seats won is greater than the percentage of total votes won by the election winner. A disproportionate number of seats is won by an election winner. FPP and PV are examples of a majoritarian electoral system. These are good systems to use in lower house elections where the formation of a stable majority government is considered desire-able. These systems disadvantage most minor parties and independents.
133
Majority government
In Australia this is where a government is formed by the party which controls more than 76 seats in the house of representatives. such parties are said to be able to govern in their own right. Prime Minister Tony Abbott won about 90 of the possible150 seats in the lower house at the 2013 federal election forming a strong majority government
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Majority rule
A key operating principle of a liberal democracy. It is based on popular sovereignty and expression of the will of the majority in government and law making.
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Majority verdict
In some jurisdictions and for some cases other than murder and manslaughter a unanimous verdict may not be required. It can be accepted for a jury to return a 10-2 or 11-1 “majority” verdict.
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Malapportionment
This is where the number of voters in an electoral division are inconsistent with the number of voters in other divisions. It can be described as being the opposite of one vote one value. the Australian Senate suffers constitutional malapportionment as a result of Section 7 of the Constitution.
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Marginal seat
In Australia’s electoral system, in the power house, when a political party holds less than 56% of the two party preferred votes for that electorate, it is considered to be “marginal”. These seats are targeted at election time due to the potential of voters in that seat to be convinced to vote for other parties. Seats where the member has greater than 60% of the two party preferred votes are generally considered to be “safe”, though this proved not to be the case in the 2019 Wentworth by-election where the incumbent held a 19% majority, but the seat was lost by the Liberal party to an independent.
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Maxims
Rules and legal principles that have developed over a long period of time. The maims of interpretation assist courts in applying consistent methods to the interpretation of statute law.
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Mediation
A form of alternative dispute resolution in which a neutral third party assists two disputing parties to find common ground and resolve their dispute. Mediation is commonly used in family law disputes and is mandatory in the pre-trial phase of Western Australia.
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Micro party
A political party which may win a limited number of seats in parliament. They may not survive for more than one or a few successive parliaments. They may hold the balance of power in the Senate in concert with other micro/minor party Senators o Independents. Micro and minor parties can more easily achieve representation int he Senate due to the proportional representation electorate system.
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Minister
A member of the executive arm of government. A member of cabinet. Ministers have responsibility for a particular area of government activity such as health, education or defence, which are referred to as a “portfolio”.
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Ministry
The entire collective of ministers and assistant ministers, including the Prime Minister. It is divided into an inner ministry of senior Cabinet ministers and outer ministry of less important ministers and assistant ministers.
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Minor party
A political party capable of winning seats in parliament, but not capable of forming government in its own right. Minor parties may seek to form a coalition with other parties to form government. Minor parties can usually achieve representation int he Senate due to the proportional representation electoral system.
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Minority government
A government formed by a party which controls less than 76 seats in the HOR and which must rely on the support of non-party members of that house on motions of confidence (collective ministerial responsibility) and supply.
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Mirror representation
An ideal form of representation in which the composition of the parliament accurately reflects the diversity of the electorate in age, gender, ethnicity, religion and other social and economic characteristics. This is part of the parliament’s “Representative function” exhibited most strongly in the Senate.
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Mischief / purpose rule
A rule of statutory interpretation in which the court seeks the original purpose of a statute law. This rule is used if the meaning cannot be declared without absurd or unjust outcomes using the literal and golden rule. The courts may refer to the statute’s second reading speech in Hansard or other materials to seek the purpose of the law.
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Motion of no confidence
A motion by which the HOR withdraws its support from the government. A successful motion of no confidence would, by the convention of collective ministerial responsibility, require a minister or the government to resign. This is a key part of the parliament’s responsibility tole. These motions are almost always defeated on party lines, which means that government will always win. At best they provide the Opposition with an opportunity to speak or debate.
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Multi-member electorate
An electorate represented by more than one representative. The electoral system used for Senate voting uses multi-member electorates.
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Nation state
the largest sovereign political and legal unit of organisation devised by humankind. A nation state is a people with the sovereignty right to determine their own government within a defined geographical area.
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Nationalise
To take into public ownership. A key ideology of democratic socialism. The opposite of privatise.
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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 a dispute, also known as procedural fairness. Courts have a duty to act fairly.
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Noscitur a sociis (“by the company it keeps”
A maxim of statutory interpretation in which a term used in a statute is interpreted in the context of the words surrounding it. Allows courts to apply “common sense” reasoning to the meaning of the law if a literal interpretation of a word does not result in a just outcome.
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Obiter dicta (“sayings by the way”)
This includes the non-critical judicial reasoning outlined in a decision, which may be persuasive in future similar cases.
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Opposition
The party with the second largest number of seats in the HOR. In the Westminster system the opposition is the alternative government. It’s role is to hold the government o account and be ready to form government itself.
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Optional preferential voting
A preferential voting system in which an elector may number as many candidates on the ballot paper as they wish. This system was applied to the Senate voting practice reforms in 2016.
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Ordinances
Delegated legislation
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Original jurisdiction
The type of cases or areas of law which a court has the power to hear “in the first instance”.
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Parliament
The typical name given to the legislature in a Westminster style political system. Australia has a Commonwealth parliament, 6 state parliaments and 2 territory parliaments.
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Parliamentary privilege
An enhanced form of “freedom of speech” enjoyed by all menders of parliament when thy are on the floor of their chamber. It protects members of parliament from criminal or civil liability for statements they make in parliament. Essential for the debate, representative, legislative and responsibility roles of the parliament. This privilege is also extended to their work in committees. Members may be held to account for he misuse of parliamentary privilege by the privileges committee of the house in which they sit.
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Parliamentary sovereignty
In a political and legal system where both common and statute law are created, if they come into conflict the statute law will prevail. The only exception to this is High Court judgements on the Constitution.
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Partisan representation
A practical form of representation in which the elected representative is a member of a political party. They contribute to their party’s policy formulation and then support the party’s position in the parliament and in public. It is the dominant form of representation in contemporary Australian politics. Part of the parliament’s representative function.
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Party room
A general term for the meeting of a parliamentary political party’s elected members of the HOR and the senate. A party’s party room I s a critical forum for political strategy and debate. It determines the party leadership.
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People’s house
The lower house of the bicameral legislature. In australia, the HOR is the people’s house because it represents citizens in states in proportion to state populations. This Australian electoral system further ensures this by enshrining the principle of one vote, one value in law, ensuring the equality of the political right to vote.
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Plaintiff
In a civil dispute, this is the party that initiates the court case and claims to have been wronged in some way.
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Plebiscite
Parliament may seek direct political participation by citizens hen an issue comes before it and for which the parliament desires popular confirmation or rejection of the proposed solutions. Plebiscites must be initiated through legislation in the parliament, are held infrequently and are non-binding.
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Political freedom
A key operating principle of a liberal democracy. Political freedoms are entitlements enjoyed by all citizens and that enable political participation. Political freedoms include the freedoms of conscience, speech, association and assembly, and media and the press.
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Political participation
A key operating principle of a liberal democracy. Political rights and freedoms enable citizens political participation, which in turn, permits citizens a role in their own government.
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Political party
Associations formed by people seeking to influence law making. They have a broad focus. Classified as either minor, major or micro parties. Generally, they are organised and well disciplined, and seek election to parliament. They are formed around shared ideological beliefs.
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Political spectrum
A traditional way of describing political ideology. Political parties on the left of the spectrum are progressive. Parties on the right are conservative. Centrist parties combine elements of both and tend to be more pragmatic. The more ideological a party or politician is, the more likely they will be further from the centre of the political spectrum. From the extreme left to the extreme right, typical political ideologies are communism, socialism, democratic socialism, social democracy, social liberalism, economic liberalism, social conservatism and fascism. Australian political parties tend to be pragmatic, with the extremes of the political spectrum not well represented in Australian politics. The political spectrum describe bot economic and social ideologies.
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Politics
A contest for the exercise of power. At the national level it is the contest for the ability to make and carry out law.
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Popular sovereignty
The right to govern rests with the people and is “gifted” to the government via the electoral process. Democracy is based on the idea of popular sovereignty.
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Portfolio
An area of government activity
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Power
The ability to bring about intended outcomes. Power may be exercised through formal channels such as law making and governing or by less formal means such as lobbying and persuasion by individuals, pressure groups and political parties
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Preamble
An introductory statement to a document. In statute law this may include a statement outlining the purpose of the law. In this constitution, it outlines the sources of authority and makes reference to whom tis document applies.
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Precedent
A judge made decision that stands as an example or guide for future excisions in cases of similar factual circumstances. There are binding precedents that apply to all courts lower in the hierarchy than where the precedent was set. There are persuasive precedents that a court may refer to when making a decision. These can be from courts outside of this court hierarchy.
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Pressure groups
Associations formed by people seeking to influence law making. They have a arrow focus. Classified as tiger “cause” groups or “sectional” groups. They take action in a variety of ways, but usually do not seek election to parliament. The theories of pluralism and corporatism explain their activity.
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Prime Minister
The head of the federal executive (the government). The leader of the majority in the HOR. The leader of the party forming a majority government. The position is entirely governed by convention, not mentioned in the Constitution.
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Private law (civil)
Law concerning wrongs committed against private parties
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Private member
A member of parliament who is not a member of the Cabinet or ministry (the executive).the opposition front bench are private members, but not backbenches
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Processes and procedures
The rules by which an institution of government operates. For example, Question time and statutory process are examples of parliamentary processes and procedures.
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Proportional voting
A proportional electoral system based on multi-member electorates in which elevators vote for candidates in order of preference. To win, a candidate must achieve a “quota” of votes determined by a formula. Candidates with votes in excess of one quota have their surplus votes distributed at a reduced transfer value. Votes are distributed at their transfer value to the second preference candidate. This system has been used to elect the senate since 1949 and versions or it are used in state upper houses. It is a good system for use in upper houses where the domination of a particular political party may be considered undesirable. It enables upper houses to function as effective houses of review and checks on executive power. This system is fair to all political parties as the percentage of votes won is more directly translated to a percentage of seats in the chamber, and may be considered partly responsible for a revival of parliament.
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Prosecution
In a criminal trial process, this is the party that brings the charge to court, acting on behalf of the Senate.
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Public law (criminal)
Law concerning “wrongs” committed against the community
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Public service
Appointed officials who provide administrative services to executive government. Arranged into government departments and agencies, and statutory authorities, it administer the laws of parliament and the regulations of its government. It is bureaucratic. It is accountably via the Westminster “chain of accountability” to ministers in Cabinet, and through them, to the parliament and the people. The public service has considerable power in its own right.
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Question Time
A key procedure associated with the responsibility role of the commonwealth Parliament which occurs at 2pm every parliamentary sitting day. Any private member may ask any minister a question concerning their portfolio area, their conduct or other matters relating to how they carry out their role.
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Quota
The requirement to win a seat in a single transferable voting electoral system
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Ratio decidendi (“reasons for deciding”)
Critical judicial reasoning which is binding on owner courts in a court hierarchy, and persuasive across and up a court hierarchy or for other court hierarchies.
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Referendum
The only formal way to change the constitution. The procedure is contained in section 128 of the constitution and requires a bill to pass the parliament proposing the change. The question must then be put to the people. To succeed, a proposal must obtain a double majority made up of a democratic majority (majority of Australian votes) and a federal majority (majority of voters in a majority of states)
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Regulations
Delegated legislation
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Representative
A member of parliament elected to represent the concerns and values of an electoral district or of a state. There are 151 representatives in the lower house and 76 in the upper house.
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Representative democracy / government
A form of government in which the people are overseeing, but are represented in government by elected members of an assembly acting as their representatives. Such representatives may be delegates, trustees or partisans.
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Reserve powers
Powers of the governor-general codified in the constitution and exercisable without “advice” in emergencies. Sections 28 and 64 are examples.
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Residual powers
All government powers not specific in the constitution. They are exercised by the states.
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Responsible government
The convention governing the formation of government in the Westminster system in which the executive is drawn from and responsible to the parliament.
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Royal assent
The formal agreement of the monarch or the monarch’s representative in Australia, the governor-general, to a proposed law. The monarch possesses the formal power to make law but, in prac the, the democratic parliament makes law. By Westminster convention, royal assent is always given, it is never refused. Section 58 grants this power to the governor-general
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Rule of law
In simple terms, this is the principle by which everyone is subject to the law. All people, governments, corporations and other entities are subject to the law regardless of power or wealth. The rule of law is characterised by a number of other principles such as judicial independence, checks and balances, limited power, respect for the rights and freedoms, democratic law making, the coherence of laws and public knowledge of laws.
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Rule by law
The opposite to the rule of law. Autocratic systems of government are characterised by the abuse of law by the powerful to subjugate the people.
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Rules of evidence
rules governing the type of evidence admissible in a trial. The adversarial trial has very strict rules of evidence. For example, hearsay, character, opinion and circumstantial evidence are not admissible because of their lower quality f evidence and reliability. The inquisitorial system of trial has more relaxed rules of evidence.
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Secret ballot
Voters must be free from intimidation. This is a key principle of a liberal democracy. Only the elector should know how they cast their vote. It is achieved by providing private voting booths for electors and by regarding any identifiable ballot paper as an informal vote.
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Sectional groups
Pressure groups focused on the benefits for a particular sector of society or the economy.
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Senate
The upper house of the Commonwealth Parliament. The constitution, at section 7, states the upper house be “directly chosen by the people”. It is the state’s house (federal and representative role) and a house of review (responsibility role).
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Separation of powers
A doctrine by which the functions of government to make, carry out, interpret and enforce the laws are dispersed to prevent the concentration of poewr. A key feature of democracy. Complementary to checks and balances
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Shadow ministry
The opposition front bench composed of spokespersons for each other ministerial portfolios of the government. They are the alternative government
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Simple majority
A majority of votes. The required majority to win in a first past the post voting system.
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Single member electorate
An electorate represented by one representative. Single member electorates are used to vote members of the HOR
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Single transferable vote
The type of proportional electoral system used to elect the senate since 1949.
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Social conservatism
A political ideology on the right of the political spectrum. It is often aligned with the economic views of economic liberalism, with the exception of government economic support.
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Social democracy
A progressive political ideology on the centre left of the political spectrum. Government should use the power of the state to provide for basic economic equality and opportunities for all citizens. The modern ALP is an example.
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Social liberalism
A political ideology on the centre right of the political spectrum. It supports the view that the market is the best means of achieving economic growth and wealth, but that the government should use the power of the state to provide for the basic economic needs of those citizens who cannot participate in the market.
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Socialism
Apolitical ideology on the left of the political spectrum. It believes that government should use the power of the state to nationalise key parts of the economy and provide for basic economic equality and outcomes for all citizens.
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Sovereignty
The unlimited authority of a nation state or a state within a federation to govern itself. Sovereignty requires a geographical territory, a population and a political and legal system to govern the people and territory. In democracies, sovereignty is vested in the people. In autocracies, sovereignty may be vested in a monarch, ,a party, a dictator or a military elite.
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Special leave to appeal
The process by which an appellant applies to have their appeal heard by the High Court. Appeals to the high court are not automatically granted. The high court only grants leave to appeal if it considered a miscarriage of justice has occurred or if the case present the opportunity for new common law to be made.
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Standard of proof
The level to which a court case must be proven in order for it to be successful. There is a lower standard of proof in civil disputes - the balance of probabilities - compared to criminal disputes - beyond reasonable doubt. This ie because of the remedies involved which, in a civil dispute, are less serious than sanctions for a criminal conviction.
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Stare decisis (“to stand by what has been decided”)
The principle upon which the doctrine of precedent is based.
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Statute law
Laws made by parliaments. Made by elected members of parliaments, statute law has democratic legitimacy and is superior to common law. It is written in broad terms. Bills must be passed in both houses of the Commonwealth parliament and be given royal assent before becoming a law.
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Statutory authority
An executive agency established by parliamentary statute. For example, the Australian Electoral Commission (AEC) administers the Electoral Act 1902
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Summary offence
This is a simple or minor offence and is adjudicated in an inferior court such as the Magistrates Court of Western Australia. Minor offences include theft and driving offences.
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System of government
The political and legal system of a nation state. Systems of government have 3 arms of government and take different forms. They have distinguishing features such as unitary or federal, parliamentary or presidential, republics or constitutional monarchies and democracies or autocracies. Systems of government may combine these distinguishing features in different wats.
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Trial
A procedure for finding the truth. This is the main process of the judicial arm of government. Adversarial trials are used in common law countries and inquisitorial trials are used in vigil law countries. Trial procedure is designed to ensure procedural fairness.
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Trustee (representation)
A theoretical form of representation in which the elected representatives act in their elector’s best interests in the parliament.. it grants more autonomy to the representative. Part of parliament’s “representative function”.
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Tyranny of the majority
A system of government in which majority rule is in tempered by a liberal respect for the political and legal rights of minorities. There are no legal restraints preventing a “popular government” based on majority rule from persecuting unpopular minotores.
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Unitary
A system of government in which sovereignty is geographically undivided. There is a single national government in which sovereignty is vested.
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Unicameral
A legislature composed of a single representative legislative chamber. For example, New Zealand, Queensland and both Australian mainland territories have unicameral parliaments.
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Vested
To bestow power upon or within. In australia, federal legislative power is vested in the Commonwealth Parliament, executive power is vested in the Queen and governor-general and judicial power is vested in the High Court and other courts. Democratic institutions vest power in separate arms of government to create a separation of powers.
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Washminster hybrid
A blend of the Westminster system of responsible parliamentary government with the American system of federalism. This is also referred to as the Washminster mutation.
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Westminster chain of accountability
The links between the people and those who execute the laws that govern them. In theory, the people elect representative to parliament. Parliament forms the executive government and hold it to account by the Westminster conventions of responsible government (individual and collective ministerial responsibility, question time, etc). The ministers hold portfolio responsibilities for government departments staffed by appointed public servants. Therefore, public servants are accountable to their ministers, ministers are accountable to the parliament, and the parliament is accountable to the people - this is the Westminster chain of accountability. It’s effectiveness is undermined by the size and complexity of modern government and by the decline of parliament. It is also undermined by the existence of political advisors to ministers. These advisors are outside the chain of accountability, but can take the blame that should belong to a minister.
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Westminster conventions
Unwritten constitutional rules that govern the practicce of government in systems that derived from the British Westminster system. One convention is that the government is formed by the party which has the confidence of the lower house in parliament. Another is that the governor-general aways acts on the advice of the federal executive council (EXCO)
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Westminster system
A system of government based on the British Westminster system. The executive is drawn from within the legislature and holds it responsible between elections. This is referred to as responsible parliamentary government”. Distinguished by the fusion of the legislative and executive powers, and the relatively weak separation between these two branches of government.
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Winner’s bonus
The percentage of the total seats won is greater than the percentage it total votes won by the election winner. A disproportional number of seats is won by an election winner. A feature off all majoritarian electoral systems.
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Witness
A person called to attend a court trial and who gives evidence. Evidence may only be presented in compliance with the rules of evidence in a court. They present a verbal account that may be “tested” through cross examination by legal counsel. The adjudicator will determine the “weight” the evidence should bear in determining the outcome of the trial.
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Writ
A written document issued by a court or another body of person with the legal authority to issue a command. Court issue writs of mandamus commanding an officer of the government to do r not to do a specific task or action. The Governor-general issues a writ to call an election.
