Topic 1 - Formative Test - Australian Law (1) Flashcards
Explain the Rule of Law. Include the 3 premises which underpin the concept.
The rule of law states that everyone is subject to the law, and no one is above the law. The three premises underpinning the concept include the institutions of government are bound by the constitution – exercise law only in the law (intra vires) – upheld by High Court, all people are equal before the law, and individuals retain fundamental human rights – laws can’t remove human rights.
What role do Parliament and the Courts play in facilitating the Rule of Law?
Parliament makes laws consistent with powers prescribed in the Constitution. They pass laws to assist the democratic process and protect fundamental human rights, such as electoral laws for the election of Members of Parliament.
Courts perform the role of facilitating the rule of law. The High Court of Australia resolves constitutional disputes regarding the validity of federal and state laws. This ensures parliaments exercise their powers in accordance with the Constitution. The courts resolve disputes by observing fundamental rights of the individual.
Outline the Doctrine of the Separation of Powers.
The separation of government power into three separate, but related institutions. These include.
- Legislative (parliament)
- Executive (government)
- Judiciary (courts)
Define Representative Government
A system of government in which members of the community are elected as decision makers and law makers. In Australia, members are elected to parliament as law makers.
Outline the key features needed for a Representative Government to function effectively.
- Rule of law: Everyone treated equally.
- Universal franchise: Voting is compulsory.
- Regular elections: Holding regular elections to hold MP’s accountable to the voters
- One vote/one value and secret ballot: Every vote is worth the same.
- Salaries for MP’s: MP’s must be paid.
- Parliamentary privilege: laws are made with EVERYTHING being considered
- Right to protest: Right to peacefully object and protest certain laws
- Open parliamentary debates: People must have access to debates and all information, as to make up their mind.
Define Responsible Government.
A system of governance in which the executive decides the policies of government and enforces parliament’s laws. Government is responsible to the parliament and the parliament is responsible to the people.
The Westminster system was adopted by Australia in 1901. It works by the people of Australia directly voting for the members of parliament, who then vote for the Executive Government (law makers), so the people are indirectly voting for the Executive government. The Federal government is chosen from the elected members of parliament in the political party which attains the majority of seats in the lower house (House of Representatives). The leader becomes Prime Minister and then selects people into the Federal Cabinet (a group of ministers each playing their own role). It is called responsible, because the Prime Minister and their ministers are directly responsible to the parliament, because it was where the government was formed.
How does the system of Constitutional Monarchy operate in Australia?
The Governor General is used to represent the King and the Monarch - is the head of state
What are the key aspects of a Republic?
President performs both the role of head of state and head of government. President is directly appointed (or elected) by the people of the USA and cannot be a member of the legislature (the Congress). The president nominates members to the executive government (law makers), who also cannot be drawn from the Congress.
Outline the key differences between a Responsible Government and a Republic.
The president – in a republic – takes on the role of what the Governor General and Prime Minister would do.
Voting for individuals instead of parties
Members of parliament vote for the executive government, while the president nominates them in a republic
Explain the key features of Responsible Government in Australia.
Executive arm determines the policies of government and enforces parliaments laws.
Adopted from the British Westminster system incorporating the parliamentary democratic model.
The party attaining majority of seats in the lower house forms the government.
Leader of the majority party is Prime Minister, and chief advisor to head of state, Governor General
Only when these three things are met, does the Governor General accept the Prime Ministers advice:
o The Prime Ministers party attains the majority of seats in the House of Representatives
o Government can guarantee the passage of supply of Bills through parliament.
o The Prime Ministers advice is consistent with the constitutional law.
The Prime Minister nominates MPs as ministers in the Federal Cabinet
PM and MPs are directly responsible to Parliament because that was where government was formed.
Outline the relationship between the Legislature and the Executive.
Ministers must be elected members of the parliament.
All ministers are directly accountable to the parliament for advice tendered to the Governor – General, and the administration and enforcement of federal statutes.
Every detail of a minister’s public performance is subject to scrutiny by parliament through Question Time, grievance debates, the general debating stages of Bills, and in special committees established by the parliament.
Cabinet meets privately and confidentially.
At meetings, different opinions, and arguments, but in public, one unified voice on government policy.
Cabinet solidarity is important, to preserve the confidence of the backbenchers – so PM can govern a full term.
Cabinet solidarity also impacts the ability of Australian governments to enter into agreements and treaties with foreign nations.
How is Executive Power exercised in Australia?
-By the Governor General
-On the advice of the Prime Minister (only when the three factors are met – outlined above)
Explain the Conventions of Responsible Government.
-The Prime Minister is the head of government and must sit in the House of Representatives to the right of the Speaker.
-The GG must exercise their constitutional executive powers on the advice of the Prime Minister
-The speaker has unlimited access to the GG so they can figure out which party leader has the confidence of the house.
-Ministers can be draw from either house and sit on the front benches to the right of the presiding officer.
-The Senate is expected to pass the Government’s supply Bills so that it is able to govern the nation.
-The High Court is independent and cannot give legal advice to the government.
Explain the Chain of Accountability as it relates to Responsible Government.
-Every minister is allocated at least one are of the government (responsibility portfolio) to manage, e.g., education, defence…
-Each head of a government department is responsible to their minister for the departments administration.
-The minister is responsible to the Prime Minister and Cabinet
-All ministers are held directly accountable to parliament and indirectly accountable to the electorate.
Explain the concept of Judicial Independence.
-Systems of courts and judicial officers separate from external forces – government and parliament.
-A judge may not be a member of parliament of the government.
-Judicial Independence is an essential part of the separation of powers. While the legislative and the executive have a close relationship in the Westminster System (due to the convention of responsible government) – the courts HAVE TO BE separate from the other two institutions of government – which are the executive and legislative. This is vital so that society can be confident that a court case is without interference from the government.
-Judges make decisions on merit, only on evidence presented in court, legal precedents or relevant laws. They cannot be swayed by the opinions of outsiders AT ALL.
