Unit 2 : Governance (Topic 1)

Question 1

Democracy

Answer 1

A system of government by the whole population or all the eligible members of a state, typically through elected representatives.

Question 2

Rule of Law

Answer 2

The doctrine that all people are equal before the law, and that the government is subject to the law.

A concept implying the subordination of the three arms of government (the executive, the legislative and the judiciary) to legal process, and the equality of all before the law; the absence of arbitrary executive power

Question 3

Representative Government

Answer 3

The political idea of representation is based on the concept that some person or institution acts on behalf of the people, by representing their beliefs, attitudes and perspectives.

The Australian political system is one in which the people elect members of Parliament to represent them, hence we have a system of representative government.

Representative government is reflected in the three levels of government - local, state and federal - and authority is shared between them. Citizens (those people who are eligible to vote and who are on the electoral roll) can vote in elections for all three levels of government.

Question 4

Responsible Government

Answer 4

Responsible Government is the term used to describe a political system where the executive government, the Cabinet and Ministry is drawn from, and accountable to, the legislative branch.

Question 5

Australian Constitution

Answer 5

The Australian Constitution, the set of rules by which Australia is run; made Australia a country.

Question 6

Describe Key Characteristics of the Australian Constitution (Non-Syllabus)

Answer 6

Divided into 8 chapters and 128 sections. It enshrines:

An Australian Parliament and government, responsible for national decision-making and law-making

A bicameral Parliament, including the Queen (represented by the Governor-General), the Senate and the House of Representatives

6 state governments, responsible for state matters

power-sharing arrangements between the Australian and state parliaments

The High Court of Australia, which is the final court of appeal. The High Court interprets the Constitution and decides its meaning, as well as settling disputes between the Australian and state governments.

Question 7

Separation of Powers Doctrine

Answer 7

A legal principle that establishes discrete and distinct power between the legislative, executive and judicial arms of government to provide for checks and balances.

Question 8

Referendum

Answer 8

A referendum, the process to change the constitution; required to pass through parliament then have a double majority (majority in Australia and majority in at least 4 states)

Question 9

Double Dissolution

Answer 9

The simultaneous dissolution of the upper and lower houses of parliament preparatory to an election used to resolve a deadlock between the houses.

Question 10

Joint Sitting

Answer 10

Members of Parliament and the Senate deliberate and vote together on the proposed law In the form it was last proposed by the House of Representatives.

Given the Senate rejects a proposed law and passes it with amendments to which the House will not agree or fails to pass it, the Governor-General may convene a joint sitting of members of the House of Representatives and the Senate in attempts to resolve the deadlock.

Question 11

Unicameral and Bicameral

Answer 11

A government that only has one house, for example, QLD (the legislative assembly). The legislative council was abolished in 1922.

A government with two houses (Senate and House of representatives) e.g. Commonwealth of Australia

Question 12

Bureaucratic Procedures

Answer 12

Rules and often time-consuming methods, procedures and protocols for carrying out the business of a house of parliament or government department.

Question 13

Australian Constitution (s. 51)

Answer 13

Section 51 of the Australian Constitution sets out the legislative powers of the Commonwealth Parliament, giving it the power to “make laws for the peace, order, and good government of the Commonwealth” with regard to, for example, trade and marriage but enshrines a large variety of legislative powers.

Question 14

Australian Constitution (s. 109)

Answer 14

Section 109 of the Australian Constitution enshrines, “when a law of the state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall… be invalid.”

Thus, deals with inconsistencies between the overlapping responsibilities residual powers of the states and exclusive powers of the Commonwealth, which are resolved by section 109.

Question 15

Australian Constitution (s. 128)

Answer 15

Section 128 of the Constitution provides the manner by which the Constitution can be altered, changed or modified so it reflects the changing needs of an evolving Australian society.

1. Any proposed changes must be approved as a Bill by the Commonwealth Parliament. The Bill must be approved by both the House of Representatives and the Senate with an absolute majority.
2. The Bill is sent to the Governor-General who will issue a writ so the referendum can occur.
3. The parliament asks eligible electors who are on the electoral roll in each state and territory to vote for or against the proposed change.
4. The parliament must submit the referendum to the voting public not less than two and not more than six months after it has passed through both federal houses of parliament.
5. If the majority in Australia and majority in at least 4 states vote ‘yes’ to the proposed change (double majority) the proposal to alter, change or modify the Constitution has been accepted.

Question 16

Describe the Division of Powers

Answer 16

Refers to the allocation of governing (legislative) responsibility by the Australian Constitution between the Federal and State Governments.

Powers can be further categorised into Exclusive (as stated in section 51 — Powers allocated to the Federal Government),

Concurrent (both State and Federal can make laws regarding matters) and Residual (whereby the States retain legislative powers over matters not specifically listed in the Constitution)

Question 17

Describe Role of The High Court

Answer 17

interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals (the highest court of appeal), by special leave, from Federal, State and Territory courts.

It may settle disputes between the division of powers, over time the Commonwealth Government’s lawmaking power has been extended purely by evolving interpretations of the constitution: New South Wales v Commwenwealth (2006)

Question 18

ANALYSE AND APPLY FEATURES OF THE AUSTRALIAN CONSTITUTION:

Challenges of changing the constitution, using past referenda as examples

Answer 18

First, a bill must be approved by both federal houses of parliament with an absolute majority. Which unless the government of the day has bipartisan support from the political parties who have elected representatives sitting in both houses of parliament, is not very feasible.

A successful referendum must have a majority of total votes and a majority in at least 4 states vote ‘yes’ to the proposed change. While some referenda have achieved this, most do not.

EXAMPLES :

Trade and Commerce (1911) Referendum - How questions are packaged: All of the proposed changes were contained within one question, so that voters could only vote YES or NO to the entire package.

1913 referendum - Another issue could be how the voting public perceives the motivation behind the referendum: Commonwealth over industrial relations was perceived as politically motivated rather than intended to promote good governance.

Question 19

ANALYSE AND APPLY FEATURES OF THE AUSTRALIAN CONSTITUTION:

Separation of powers and the importance of an independent judicial system

Answer 19

The Division of government responsibilities into distinct branches is to prevent the concentration of power and provide for checks and balances. The Australian Constitution sets out the powers and responsibilities of the three seperate arms of government as it is the underlying structure of Australia’s representative democracy based on the separation of powers doctrine.

However, within Australia the separation of powers doctrine is not entirely in place. the Prime Minister and Cabinet ministers are part of the executive and the parliament. High Court judges, the Prime Minister and the Cabinet ministers are officially appointed by the Governor-General, who is also part of the parliament and the executive arms of government.

Chapter 1 (ss 1-60) the parliament: makes, amends and repeals the laws.

Chapter 2 (ss 61-70) the executive: administers the law (puts laws into action)

Chapter 3 (ss 71-80) the judicature: interprets, adjudicates, and applies the law.

Judicial independence is a fundamental aspect of law and governance in Australia in order to discharge the responsibility of the rule of law (cannot be equality before the law if there is interference from other arms - not impartial). The separation of powers doctrine means that in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive. The constitutional guarantees of tenure and remuneration assist in securing judicial independence (s. 72)

Question 20

ANALYSE AND APPLY FEATURES OF THE CONSTITUTION:

Role of s 51 of the Australian Constitution, and residual powers with reference to current and/or landmark cases, e.g. the Tasmanian Dam Case (Commonwealth v. Tasmania (1983) 158 CLR 1)

Answer 20

Section 51 of the Australian Constitution sets out the legislative powers of the Commonwealth Parliament, giving it the power to “make laws for the peace, order, and good government of the Commonwealth” with regard to, for example, trade and marriage but enshrines a large variety of legislative powers.

Such powers are referred to as ‘exclusive’ as they are held exclusively by the federal parliament to legislate. States parliaments, however, receive their lawmaking abilities from residual and concurrent powers - those not explicitly mentioned as Commonwealth delegated in the Australian constitution.

In Commonwealth v Tasmania (1983), Tasmania argued the World Heritage Act 1982 (Cth) was constitutionally invalid as the Commonwealth government had exceeded its section 51 powers, specifically its authority to legislate for external affairs (international obligations).

The High Court sided with the Commonwealth Government marking a controversial change in external affairs power section 52(xxix) allowing the Commonwealth to make laws codifying or enforcing international treaties, and therefore increasing its law-making power at the expense of the states residual power, as has been the trend of High Court decisions have continued to established.

Question 21

Explain the role of the Crown (Governor-General)

Answer 21

Section 61 of the Constitution states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative’, thus the Governor-General has certain powers to act on behalf of the Queen.

The Australian Constitution gives the Governor-General executive power. This power includes giving Royal Assent to laws passed by the Australian Parliament and starting the process for a federal election. The Governor-General exercises these powers on the advice of the Prime Minister and ministers, who have day-to-day responsibility for governing Australia.

The Governor-General’s reserve powers are not included in the Constitution. They come from the authority of the Queen, who the Governor-General represents. The only guide to these powers is convention—tradition. This means the exact nature and scope of these powers is arguable.

The Governor-General’s reserve powers are generally agreed to include:

• The power to appoint a Prime Minister if an election has not - resulted in a clear outcome.
• The power to dismiss a Prime Minister if they have lost the support of the majority of members of the House of Representatives.
• The power to refuse a request for a double dissolution.
• The power to dismiss a Prime Minister or minister if he or she breaks the law.
• The power to refuse a request from a Prime Minister to call an election.

Question 22

Explain the role of the Crown (State Governor)

Answer 22

The state Governor is appointed by the Sovereign, by Commission, on the advice tendered by the Premier.

State Governor’s powers are similar to those of the Governor-General except at a state level and are aided by the Executive Council. Governors formally appoint the state premier and preside over the opening of each state parliament. State governors also issue the writs for state elections and, importantly, for the election of Senators from their state. Also, all bills passed by the state parliaments must undergo royal ascent by the Governor.

The Governor must always remain apolitical. The Crown represents the interests of all people. it is incumbent upon the Governor to ensure that all people of Queensland (Or any State) enjoy a continuance of stable government.

Question 23

Explain the role of the Crown (Territory Administrators)

Answer 23

It is the duty of the Terrirtory Administrator to sign all Bills that have been passed by the Legislative Assembly of the Northern Territory in order to make them part of the law of the Northern Territory. The Administrator regularly presides over a meeting of the Executive Council (comprising the Chief Minister and Ministers),. The Administrator has a duty to ensure that the processes of the Executive Council are conducted lawfully and regularly and accordingly may ask questions and seek further information from Ministers.

The Administrator has other statutory powers, including the power to:

• Dissolve the Legislative Assembly of the Northern Territory and issue writs for a general election
• Appoint Ministers of the Northern Territory Government

Issue regulations and proclamations under existing laws

• Appoint judges and senior public servants on the advice of the Executive Council
• Exercise the Prerogative of Mercy.

Question 24

Explain the Role of the Lower houses of Parliament

Answer 24

The House of Representatives consists of 150 members of parliament elected by citizens who are on the electoral rolls in each federal electorate. The Australian Government is formed in this house, usually by the political party or coalition of parties that can command the majority of members on the floor of the parliament. The Speaker of the house is in charge of the bureaucratic procedures of the house. The Speaker of the House of Representatives and the President of the Senate together are known as the parliament’s presiding officers.

1. Represent the views of Australians (representative government) and discuss matters of national and international importance.
2. They make and change federal law by debating and voting on Bills. A Bill must be agreed to in identical form by the House of Representatives and the Senate and given Royal Assent by the Governor-General. It then becomes law.
3. They scrutinise the work of the government, especially in Question Time and through parliamentary committees.

Question 25

Briefly describe the structure of the Federal Parliament of the Commonwealth

Answer 25

The Parliament consists of two Houses (the Senate and the House of Representatives), and the Queen, represented in Australia by the Governor-General.

The Australian Parliament has four main roles:

• Making and changing federal laws.
• Representing the people of Australia.
• Providing a place where the government is formed.
• Keeping a check on the work of the government

Question 26

Explain the role of the Upper house of Parliament

Answer 26

The Senate consists of 76 senators elected by citizens who are on the electoral roll in each federal electorate (representative government). The Senate was established at the federation as the states house, with the intention that it would represent and safeguard the rights of states. The President of the Senate is in charge of the bureaucratic procedures in the Senate.

Presently, the role of the Senate is more as a house of review of the legislation being proposed by the government of the day. Twelve senators are elected from each state and two are elected from each territory (excluding ACT).

the Senate share a similar purpose to the House with the primary role of acting as scrutineers on the government and representing state and territory interests in the federal parliament.

1. Represent the views of Australians and discuss matters of national and international importance.
2. They make and change federal law by debating and voting on Bills. A Bill must be agreed to in identical form by the House of Representatives and the Senate and given Royal Assent by the Governor-General. It then becomes law.
3. They scrutinise the work of the government, especially in Question Time and through parliamentary committees.

Question 27

What is a Parliamentary Committee? (Non-Syllabus, well at least in topic 1: governance)

Answer 27

A parliamentary committee is a group of Members or Senators (or both in the case of joint committees) appointed by one or both Houses of Parliament to undertake certain specified tasks. Committees have both government and non-government members on them and considerable powers to undertake work on behalf of the parliament. The Senate also has its own committee system and much of the following information is relevant to Senate committees too.

Most parliamentary committees investigate specific matters of policy or government administration or performance. Other parliamentary committees are responsible for matters related to the internal administration of the parliament.

Question 28

Explain the Differing legislative powers of federal and state parliaments under the Constitution in Areas of E.g Health

Answer 28

Health is considered a concurrent power, as both the states and the Commonwealth have made public health-related legislation.

Under section 51 (xxiii) “… pharmaceutical, sickness and hospital benefits, medical and dental services”. Anything not included within section 51, is the residual power of the states to create laws. As this section does is not a broadsheet ‘public health’ the state’s reserve some power concerning the administering of hospitals.

federal Parliament - payments to doctors and for pharmaceuticals

state and territory parliaments - hospitals

Question 29

Explain the differing legislative powers of federal and state parliaments under the Constitution, e.g. Education

Answer 29

Education is not listed in the Australian Constitution as a responsibility of the Australian Parliament, which means it is a responsibility for state and territory parliaments. This means state and territory parliaments—particularly education ministers and departments—run schools and set education policies.

Although the state and territory governments run their own schools, they may need to follow Australian Government policies to receive federal government funding. Section 96 of the Australian Constitution allows the Australian Parliament to give money—’tied grants’—to state governments based on certain terms and conditions

The regulation of higher education in Australia is undergoing major change, with a largely State-based system being forced to make way for a new national scheme. To this end, in June 2011, the Tertiary Education Quality and Standards Agency Act 2011(‘TEQSA Act’) was passed by Federal Parliament. It establishes the Tertiary Education Quality and Standards Agency (‘TEQSA’) - a new and independent national regulatory body responsible for oversight of the higher education sector.

Question 30

Explain the differing legislative powers of federal and state parliaments under the Constitution, e.g. Immigration

Answer 30

Under section 51 (xxvii) of the Australian constitution, immigration and emigration are the exclusive jurisdiction of the Commonwealth parliament to legislation.

As is seen in the Migration Act 1958 (Cth) creating policy for mandatory detention for both ‘unlawful’ arrivals and refugees.

Question 31

Explain the differing legislative powers of federal and state parliaments under the Constitution, e.g. Environment

Answer 31

1. Under section 51(xxix) of Commonwealth Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations, particularly after its extension in Commonwealth v Tasmania.

It has created a framework for protecting biodiversity in Australia within the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) (Cth) and the World Heritage Act 1982 (Cth)

state and territory parliaments - protection of the natural environment, approvals for new developments, waste disposal etc

Question 32

Explain the implications of a unicameral parliament in Queensland

Answer 32

Lacking an upper house of review after the legislative council was abolished in 1922, Queensland cannot undertake a reasonable set of checks and balances that a bicameral parliament can afford. Thus, Queensland relies on a committee system comprising of MPs to scrutinise the parliament, attempting to keep the functions of the government open and accountable.

1. However, Queensland’s unicameral parliament does not provide sufficient parliamentary opportunity to scrutinise Ministerial decisions or legislation without an upper house. Although the committee system is some safeguard, lacks the ability to prevent the passing of a bill entirely. Furthermore, a single legislature system causes the centralization of political decision making.
2. It could even be proposed that the removal of the upper house diminishes the rule of law as the government is less accountable and representative government as it has caused a centralisation of political thinking.
3. Another disadvantage of unicameral government is it removes the House of Review of government decisions. This can be problematic for the Westminster model that Australia follows, where the Executive forms part of the Legislature. Without review, the Executive’s power can be unbalanced and the separation of powers can be weakened.

Add a positive point.

Question 33

Explain the implications of single majority, double majority and minority governments

Answer 33

Usually a single party or coalition of parties is voted in with a majority in their own right, which is known as a majority government.

If no political party or coalition achieves a majority in the House of Representatives, the result is called a hung parliament. It is still possible for a government to be formed if a majority can be achieved through agreement with independent and/or minor party members. This type of government is known as a minority government. In this instance, independents are said to hold the balance of power.

add more

Question 34

How is the Government of the Day Elected? (Non-Syllabus)

Answer 34

The Australian Government is part of the Australian Parliament. At a federal election, the party or coalition of parties with the support of the majority of members elected to the House of Representatives becomes the government. They remain the government until they lose the support of the majority of members, which rarely happens outside of a federal election.

Although the government is formed in the House of Representatives, there are also members of the government in the Senate. The government may or may not hold the majority of seats in the Senate.

Question 35

What is the role of the Opposition? (Non-Syllabus)

Answer 35

The opposition is formed by the largest party or coalition of parties that do not have the support of the majority of members in the House of Representatives. The opposition is sometimes called the alternative government because it could form the government if it was to win the support of the majority of members.

Although the opposition is formed in the House of Representatives, there are also members of the opposition in the Senate. The opposition may or may not hold the majority of seats in the Senate.

The opposition does not hold the majority of seats and therefore cannot prevent the flow of legilsation to the Senate, like the government of the day.

scrutinising - closely examining - the work of the government.

asking the government to explain its actions.

debating bills - proposed laws - in the Parliament.

working on committees that examine bills and important national issues.

providing alternatives to government policies.

Question 36

Federal Election

Answer 36

During a federal election, the voting public submits preferential ballots for members of the parliament and members of the Senate which represent each state.

Question 37

Explain the function of parliament as a law-making body and describe the legislative process (Developing a Bill)

Answer 37

Parliament is the supreme law-making body, with law-making being its primary role. Therefore, it is the best resourced and equipped body to make law. The parliament functions to pass legislation as directed by government ministers and the government of the day under the legislative jurisdiction of section 51 of the Australian Constitution.

The original ideas for government legislation come from various sources. They may result from party policy, perhaps announced during an election campaign, from suggestions by Members and Senators or from interest groups in the community. matters of administrative necessity, originate in government departments.

In whichever way a proposal originates it is considered by Cabinet or the Prime Minister and, if agreed to, the Minister responsible has his or her department arrange preparation of a bill. Bills are drafted by the Office of Parliamentary Counsel in accordance with detailed instructions issued by departments.

Question 38

Explain the function of parliament as a law-making body and describe the legislative process (Passage of a bill through the House—the normal routine)

Answer 38

During its consideration by the House a bill passes through successive stages, at which proposals are made (motions moved) in relation to the bill’s progress or content, speeches may be made for and against such proposals (debate) and the proposals are voted on (decisions of the House).

FIRST READING :

After giving notice, the first reading takes place in the lower house (House of Representatives). The long title of the bill is read out and an explanatory memorandum , as well as the bill, becoming available to the public.

After this, the Minister calls the bill to be read a second time explaining the purpose, general principles and effect of the bill - known as the ‘second reading speech’ and may be referred to by courts for its later interpretation. After which, the second reading debate is adjourned and scheduled for another time so members may properly consider of the Bill in its current form.

SECOND READING : ( In Principle Debate )

The second reading debate is the discussion of the motion moved by the Minister. It is normally the most substantial debate that takes place on a bill. Its purpose is to consider the principles of the bill. Debate may cover, for example, reasons why the bill should be supported or opposed, the necessity for its proposals or alternative means of achieving the same objectives.

The opposition Member (usually the ‘shadow minister’) outlines the opposition’s position on the bill. Government and non-government Members then usually speak in turn. The total time for the debate is not restricted by the standing orders.

At the end of the debate, a vote is taken to decide the House’s view on the motion moved by the Minister—’That this bill be now read a second time’.

CONSIDERATION IN DETAIL :

The purpose of this stage is to consider the text of the bill in detail, clause by clause, and to enable changes to be proposed. Amendments may be made. Consideration in detail may be bypassed, however.

THIRD READING :

This is the final stage in consideration of a bill and is usually a formality. Although the standing orders (written rules) provide for the third reading to take place on another sitting after the consideration in detail has been completed, in practice the House allows the Minister to move the motion ‘That this bill be read a third time’ immediately.

mabybe split these up

Question 39

Explain the function of parliament as a law-making body and describe the legislative process (Passage in the Senate)

Answer 39

The bill again goes through three readings in the Senate. When the bill has passed the Senate, the Senate then returns the bill to the House, either with or without amendments. The Senate may also request that the House make an amendment in cases where the Senate is prevented by the Constitution from making an amendment itself. Senate amendments and requests are considered by the House, and may be accepted or disagreed to. Where there are disagreements, messages may pass between the two Houses to seek to reach agreement as to the bill’s final form.

When a bill has finally passed both Houses in identical form and been checked and certified accordingly by the Clerk of the House, it is presented to the Governor-General for assent.

Acts do not necessarily come into operation immediately on assent, although this is common. An Act may specify a particular date for commencement, perhaps retrospective, or the day of a stipulated event, or a date to be decided later by the government and announced (‘proclaimed’) by the Governor-General. If no commencement date is specified in an Act, it comes into effect on the 28th day after it receives assent.

Question 40

Explain the function of parliament as a law-making body and describe the legislative process (Alternative Pathways)

Answer 40

FEDERATION CHAMBER

Following the Minister’s second reading speech in the House, a bill may be referred to the Federation Chamber for the remainder of the second reading and the consideration in detail stages. The Federation Chamber is a committee established to be an alternative to the main Chamber of the House for the consideration of a restricted range of business. All Members of the House can take part in the debates in the Federation Chamber. It meets while the House is sitting, making it possible for two streams of legislation to be debated at the same time. Generally speaking, bills are only referred to the Federation Chamber following agreement on the referral between government and non-government Members. The Federation Chamber’s procedures are substantially the same as they are in the House. Before their third reading, bills which have been considered in the Federation Chamber go through an additional stage—the report stage—when the House considers and votes on the bill as reported back to it.

THE GUILLOTINE

If for some reason the government wishes to hasten a bill’s progress, a Minister can declare it an ‘urgent bill’. Fixed time for a bill to be debated.

REFERENCE TO COMMITTEE

It is possible for a bill to be referred for an advisory report to a committee which specialises in the subject area of the bill. The committee can hear witnesses and gather evidence relating to the bill and can recommend action to the House, although it cannot amend the bill itself.

Question 41

Explain the function of parliament as a law-making body and describe the legislative process (Bills Introduced by the Senate)

Answer 41

The great majority of government bills are initiated in the House of Representatives, because of the constitutional restrictions on the nature of bills which can originate in the Senate and because of the fact that most Ministers are Members of the House.

When a Senate bill has passed all stages in the Senate, it is transmitted to the House under cover of a formal message and introduced to the House by the Speaker reading the terms of the message to the House. Subsequent proceedings follow the same processes as House bills.

Question 42

Describe the structure and function of the three levels of government in Australia (LOCAL)

Answer 42

STRUCTURE: Shire or Council, the main decision-making body of the local government, is made of several electorates called divisions or wards, in which citizens vote for councillors. The head of a local government area of the region is the mayor.

FUNCTION: Make laws that reflect community needs and ensures they govern their local area. Local laws can differ between local governments and these laws have to be approved by the state parliament because shires and councils are created by state parliaments. Duties, powers and responsibilities are enshrined in Local Government Acts (City of Brisbane Act 2010). Take care of roads, parklands and other public property, public safety, garbage disposal, libraries etc.

Question 43

Describe the structure and function of the three levels of government in Australia (STATE)

Answer 43

STRUCTURE: Own government, constitution and parliament, which is the decision making authority for each state and territory. Each state government is a constitutional monarchy, and their respective Constitution Acts specifically recognize that the parliament consists of the sovereign - represented by the Governor, a lower house and an upper house (except in Queensland). Citizens in state government electorates vote for representatives who will represent them in the state parliaments - known as Members of the Legislative Assembly. The head of government in a state is known as the Premier.

FUNCTION: Exercise power under the concurrent and residual powers. Reserve the powers to administer prisons, public works, and community services. But share a large amount of power with the Commwenealth including education, health, the environment (concurrent powers). Fundamentally, the role of the state government is to create laws relevant and representative of the people of that state.

Question 44

Describe the structure and function of the three levels of government in Australia (FEDERAL)

Answer 44

The federal government is the national government, responsible for the governance of the Commonwealth of Australia. Its powers are enshrined in section 51 of the Australian constitution (exclusive powers). The Australian Parliament comprises the Queen (represented by the Govenor-General), the Senate and the House of Representatives.

Question 45

Describe concept of responsible government

Answer 45

Responsible government is a system where the government is answerable to elected representatives of the people for its actions, especially a system where the ministry is from within the parliament from members of the political party or parties with the support of a majority of the lower house in Australia (the House of Representatives) and must maintain the confidence of the majority of that house.

To remain in government, a party or coalition must maintain the support of the majority of members in the House of Representatives. This is part of the principle of responsible government. It ensures the government is accountable to the Parliament.

In Australia, the principle of responsible government works together with the principle of the separation of powers to guide the way in which law is made and managed.

Question 46

Describe concept of representative government

Answer 46

In Australia, citizens vote for other citizens to represent them in the parliament. These representatives become members of parliament or senators, and they represent the voters in their electorates or states. As our lawmakers, these representatives are expected to act in the best interests of the people and make laws for the good governance of the Commonwealth (s. 51) Since the government of the day is also made up of these elected representatives, it is referred to as a representative government.

The representatives of the people meet in parliament and perform a number of functions, including deciding who will form the government, making, amending and repealing laws; debating political and legal issues and proposed laws; representation and acting for their constituents to government and the public service; and monitoring the expenditure of public money and the actions of the government.

In Australia, the representative of the government is reflected in the three levels of government - local, state and federal - and authority is shared between them. The voting public participates in all three levels via representative government via voting for their representatives on each governmental level.

Question 47

Describe accountability of parliament and the rule of law

Answer 47

• Checks and Balances of the Separation of Powers
• Restricted to the exclusive powers of Section 51 of the Australian Constitution
• The Opposition scrutinises the government
• Representative Government. Made up of elected representatives
• Responsible government is a system where the government is answerable to elected representatives of the people for its actions
• Commission of Inquiry

Question 48

Explain and Analyse the Strengths of parliament as a law-making body

Answer 48

• Parliament is the supreme law-making body, with law-making being its primary role. Therefore, it is the best resourced and equipped body to make law.
• Parliament can investigate a whole area of law (e.g. the Crimes Act 1958).
• Parliament is a representative body. Elected members represent the majority of people. Therefore, laws are reflective of the majority’s values. For instance, legislation relating to the National Disability Insurance Scheme (NDIS) passed easily because it had bipartisan support resulting from overwhelming public support for the scheme
• Issues before parliament are publically aired and allow for public debate on issues. The passage of a Bill is extensive, which aims to ensure that society’s views are debated and represented clearly. This structure allows for the government to fulfil its roles as representative and responsible.
• Parliament can act quickly if needed. For example, in response to the Global Financial Crisis, then Prime Minister Kevin Rudd passed legislation for his Economic Stimulus Package a mere ten days after he announced the plan to the public
• Parliament can make laws in anticipation of a future event

Question 49

Explain and Analyse the Weaknesses of parliament as a law-making body

Answer 49

• Statutes are worded broadly, which can lead to a need for interpretation and possibly leaves loopholes in the law.
• Parliament may not always represent the majority of people. Governments and MPs can be unduly influenced by pressure groups, therefore, they may legislate or block. Additionally, as a representative body, politicians may simply make popular decisions in order to get re-elected, rather than towing their party line or doing what is needed.
• However, debate may not lead to any legislation being passed. Parliaments are often unwilling to legislate on controversial areas where opinions are divided and strong. For instance, state parliaments are generally unwilling to pass legislation legalizing voluntary euthanasia, despite widespread community support for such legislation
• Parliament cannot always act quickly, as it only sits on a limited number of days in the year. In 2014, the House of Representatives only sat for 72 days
• Legislation can easily become outdated

Question 50

Describe and explain the relationship between legislation and case law

Answer 50

An Act of parliament overrules that of common law if they have overlapping scope. Legislation that directly interacts with pre-existing precedent, in which it has overruled it, may change its interpretation in execution. Furthermore, legislation is bound by the elements it enshrines, and therefore cannot every possibly encompass every interaction with the law. In that case, the court’s interpretation of an act can extend the act, establishing common law.

Question 51

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions

Answer 51

Generally, specialist courts and tribunal reduce the burden on the pre-existing judicial system and make the laws execution more responsive and accessible to the people. Further, they provide specialised and effective hearing of particular matters that that conventional courts may miss.

Question 52

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. the Family Court

Answer 52

The Family Court deals with particular family related proceedings, including but not limited to such matters affecting children, separation and divorce, division of assets, family violence, and dispute resolution. Unlike the Federal Circuit Court, the Family court hears more complex family-related disputes. The court maintains registries in every Australian state (excluding Western Australia). Enshrined in Family Law Rules 2004. The Family Court is a federal court, dealing with other family-related proceedings such as custody issues between parents, while the Children’s Court is a state court

Question 53

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. the Children’s Court

Answer 53

The Children’s Court deals with serious criminal offences by juveniles (Under 18s). In Queensland, criminal matters involving children are dealt with in the Children’s Court of Queensland (CCQ) constituted either by a Judge (certain indictable offences) or a Magistrate depending on the seriousness of the offences with which the young person is charged. The most serious offences (murder) must occur in the Supreme court. Enshrined under Children’s Court Act 1992.

The CCQ is constituted by:

• An appointed Children’s Court Judge, or other District Court Judge if a Children’s Court Judge is unavailable.
• An appointed Children’s Court Magistrate or other Magistrate if a Children’s Court Magistrate is unavailable.

Question 54

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. Murri Court

Answer 54

Murri Courts are courts for sentencing Indigenous offenders who have pleaded guilty to an offence that can be dealt with in a Magistrates Court.

A Murri Court differs from a normal Magistrates Court in a number of ways: it is more informal, Indigenous elders assist the Magistrate with cultural issues, and an attempt is made to work out why the offender committed the offence.

The main reason that Murri Courts were introduced was to try to reduce the over-representation of Indigenous people in Queensland’s prisons. Murri Courts are located in the Magistrates and Children’s Courts in Brisbane, Caboolture, Cairns, Cherbourg, Cleveland, Ipswich, Mackay, Maroochydore, Mount Isa, Richlands, Rockhampton, St George, Toowoomba, Townsville and Wynnum.

Question 55

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. Administrative Appeals Tribunal (AAT)

Answer 55

Administrative Appeals Tribunal (AAT) the Administrative Appeals Tribunal (AAT) conducts independent merit reviews of administrative decisions made under Commonwealth laws.

We review decisions made by Australian Government ministers, departments and agencies and, in limited circumstances, decisions made by state government and non-government bodies. We also review decisions made under Norfolk Island laws. The AAT was established by the Administrative Appeals Tribunal Act 1975 (Cth) and commenced operations on 1 July 1976.

The Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeals Tribunal were amalgamated with the AAT on 1 July 2015. The AAT can only review a decision if a law states that the decision can be reviewed by the AAT including review of decisions made under more than 400 Commonwealth Acts and legislative instruments. As a tribunal enshrined by Parliament in a federal act, the AAT falls under federal jurisdiction.

Question 56

Describe and explain the relationship of specialist courts and tribunals with state and federal jurisdictions, e.g. Queensland Civil and Administrative Tribunal (QCAT)

Answer 56

Queensland Civil and Administrative Tribunal (QCAT) offers dispute resolution without the need to go to court outlined in Queensland Civil and Administrative Tribunal Act 2009. Depending on the nature of the dispute, the parties to a dispute can first try to reach an agreement through mediation or compulsory conferences through QCAT.

If the disputing parties are unable to come to an agreement, the dispute will go to a hearing for the tribunal to decide on a solution. The tribunal will consider the evidence and arguments of all parties in the dispute before coming to a fair and legally binding decision. If the parties do not comply with QCAT’s decision, it can be enforced through the courts. QCAT can make decisions about a wide array of areas, including:

• Adult administration and guardianship
• administrative decisions
• anti-discrimination
• building disputes
• children and young people
• consumer disputes
• debt disputes
• minor civil disputes
• occupational regulation
• other civil disputes
• residential tenancy disputes
• retail shop leases
• tree disputes

Question 57

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g Mabo v Queensland (No 2) (“Mabo case”) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)

Answer 57

The Mabo decision altered the foundation of land law in Australia by overturning the doctrine of terra nullius (land belonging to no one) on which British claims to possession of Australia were based. This recognition inserted the legal doctrine of native title into Australian law. The judgments of the High Court in the Mabo case recognised the traditional rights of the Meriam people to their islands in the eastern Torres Strait. The Court also held that native title existed for all Indigenous people in Australia prior to the establishment of the British Colony of New South Wales in 1788.

In recognising that Indigenous people in Australia had a prior title to land taken by the Crown since Cook’s declaration of possession in 1770, the Court held that this title exists today in any portion of land where it has not legally been extinguished. The decision of the High Court was swiftly followed by the Native Title Act 1993 (Cth) (NTA) which attempted to codify the implications of the decision and set out a legislative regime under which Australia’s Indigenous people could seek recognition of their native title rights.

Question 58

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g Wik Peoples v. Queensland (1996) 187 CLR 1; [1996] HCA 40

Answer 58

the High Court held that native title rights could coexist on land held by pastoral leaseholders

• a pastoral lease does not necessarily confer rights of exclusive possession on the pastoralist
• the rights and obligations of the pastoralist depend on the terms of the lease and the law under which it was granted
• the mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights
• if there is any inconsistency between the rights of the native title holders and the rights of the pastoralist, the rights of the native title holders must yield.

So, if there is a conflict of rights, the native title holders come off second best. If there is no conflict, the rights of each co-exist. Despite the High Court decision establishing a negative precedent, it resulted in a positive response regarding native ownership rights. This High Court decision prompted the Howard Government to implement amendments to the Native Title Act 1993 (Cth) NTA. These amendments were known as the ‘10 Point Plan’. The Government’s Native Title Amendment Bill 1997 was amended by the Senate twice, and finally passed in July 1998.

Question 59

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g New South Wales v. Commonwealth (2006) 229 CLR 1; [2006] HCA 52

Answer 59

New South Wales v Commonwealth (also called the WorkChoices case) [1] is a landmark decision of the High Court of Australia, which held that the federal government’s WorkChoices legislation was a valid exercise of federal legislative power under the Constitution of the Australian Commonwealth Act 1901 . In essence, the majority) found the Constitution’s corporations power capable of sustaining the legislative framework, while the conciliation and arbitration and territories powers were also seen as supporting parts of the law. Furthermore, the majority also held that the legislation permissibly limited State powers and did not interfere with State constitutions or functioning. A minority dissented.

Question 60

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g Roadshow Films v. iiNet Limited (2012) 248 CLR 42; [2012] HCA 16

Answer 60

The High Court of Australia held that iiNet, Australia’s second largest ISP, was not liable for authorising its customers’ infringement of copyright films downloaded over BitTorrent. alleging that iiNet was liable by failing to act upon notices alleging that users were infringing their copyrights.

In December 2008, 34 movie studios commenced action against iiNet in the Australian Federal Court alleging that iiNet was liable by failing to act upon notices that users were infringing their copyrights. iiNet won that case, with the court finding iiNet was under no obligation to protect the rights of third parties such as the studios. The studios appealed that decision to the Full Bench of the Federal Court. The appeals court also found in favour of iiNet; deeming we acted reasonably and are not liable for the actions of its customers.

On 20 April 2012, the High Court dismissed the final appeal lodged by Roadshow Films & Others against iiNet. Chief Executive Officer, Michael Malone, said the judgment supported the company’s position and proved the claims made against it were unfounded.

Question 61

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g R v. Bayliss & Cullen (1986) 9 Qld Lawyer Reps 8; [1986]

Answer 61

Doctors Bayliss and Cullen were charged with procuring an illegal abortion contrary to Section 224 of the Criminal Code, and with inflicting grievous bodily harm. The presiding judge at that trial - R v Bayliss and Cullen - was Justice McGuire. He based his ruling on the celebrated English case R v Bourne in 1939 and a Victorian ruling by Justice Menhennit in R v Davidson (1969). The Menhennit ruling defined abortion as lawful when a doctor had formed a reasonable belief that abortion was:

necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and in the circumstances not out of proportion to the danger to be averted.

Judge McGuire indicated that the present abortion law in Queensland was uncertain and that more imperative authority, either the Court of Appeal or Parliament, would be required to effect changes to clarify the law. At the conclusion of the trial, Doctors Bayliss and Cullen were found not guilty on both counts. The basis for lawful abortion in Queensland currently rested on Judge McGuire’s decision.

On October 17, 2018, the Termination of Pregnancy Bill was passed in parliament, decriminalising abortion. The Bill came into operation on 3 December 2018. This will allow women to make an informed decision about the termination of a pregnancy in consultation with their healthcare provider. It will also allow healthcare providers to deliver these services without fear of criminal proceedings. Such law reform was undertaken by the Queensland Law Reform Commission (QLRC) in a review to modernise Queensland’s outdated legislation.

Question 62

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g Al Masri v. Minister for Immigration & Multicultural and Indigenous Affairs (2002) 192 ALR 609; [2002] FCA 1009

Answer 62

The 2003 case of Mr. Akram Al Masri highlighted the issue of the indefinite detention of unlawful non-citizens where there is no reasonable prospect of removal or deportation to another country.

Mr. Al Masri was a stateless Palestinian asylum seeker, from a part of Gaza under the control of the Palestinian Authority. He arrived in Australia unlawfully, by boat in 2001. Shortly after his arrival he was transferred to the remote Woomera Immigration Detention Centre in South Australia. His claim for asylum was refused by the Department of Immigration and on appeal to the Refugee Review Tribunal (RRT).327 Mr. Al Masri elected not to challenge the RRT decision and instead requested that he be returned to Gaza. Arrangements were started for his return, but Israel, Egypt, Jordan and Syria refused to grant Mr. Al Masri an entry permit in order to facilitate his return to Gaza.

At this point, Mr. Al Masri - as a Palestinian - could have been recognised as stateless, and not seen simply as a rejected asylum seeker; the cost of not having in place a statelessness determination procedure is therefore evident. With Mr. Al Masri facing the prospect of indefinite detention, the matter came before the Federal Court, which found that there was no power to continue to detain Mr. Al Masri in circumstances where there was no real likelihood or prospect of removing him from Australia in the reasonably foreseeable future. The finding was subsequently upheld on appeal to the Full Federal Court. Mr. Al Masri who had been released from detention with reporting requirements, was later removed from Australia and returned to Gaza in 2002.

Question 63

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g The Attorney-General for the Commonwealth v ‘Kevin and Jennifer’ & Human Rights and Equal Opportunity Commission (2003) 172 FLR 300; [2003] FamCA 94

Answer 63

The applicants, a woman and a transgender man named Kevin, applied for a declaration of validity of their marriage. The Attorney General intervened in their application, arguing against the couple. The case was heard by the Family Court. This Court accepted as valid the common law definition of marriage as the union for life of one man and one woman, to the exclusion of all others.

The Court’s decision, therefore, hinged upon its definition of “man” for the purposes of marriage. The Court held that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, which included, but were not limited to: “biological and physical characteristics at birth (including gonads, genitals, and chromosomes); the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person’s brain that are associated with a particular sex”.

The Court noted that the inquiry into these factors should involve the person’s state at the time the marriage was performed. This precedent, among other factors, eventuated in the legalisation of same-sex marriage within Marriage Act 1961.

Question 64

Describe and explain the role of landmark court decisions in influencing legal change or law reform, e.g Dietrich v. the Queen (1992) 177 CLR 292; and [1992] HCA 57

Answer 64

Historically in Australia, a person who could not afford legal representation had to proceed to trial undefended, even in the case of serious crime. This case established the principle that a person charged with a serious criminal offence should, except in exceptional circumstances, have their trial stayed until they can obtain legal representation. This significant judge’s discretion contributes to fair trials and equality of treatment before the law.

The High Court justices concluded that when an accused, through no fault of their own, does not have legal representation when charged with a serious offence, a judge may order the trial be delayed (“stayed”) until legal representation is available to ensure fairness. Still, not act enshrines the right to legal representation in Australia.

Question 65

Analyse Legal Issues by…

Answer 65

determining the nature and scope of the issue

examining viewpoints and consequences

presenting alternatives to make a decision or propose recommendations

justifying using legal criteria and discussing implications

Question 66

Analyse and evaluate the role of courts in law-making through the interpretation of statues and the development of legal principles through the application of the doctrine of precedent

Answer 66

The role of the Australian courts is to interpret and decide matters of law that come before the courts. Each court has its own jurisdiction and can only hear matters that fall within the jurisdiction. Each state and territory has its own courts, which deal with matters relating to that state or territory, except for the High court, which has jurisdiction over all the laws of the Commonwealth of Australia.

Question 67

analyse and evaluate the role of courts in law-making through the interpretation of statues

Answer 67

When laws are drafted by the parliament, important factors need to be considered. The drafter of a new law needs to consider not only the intent of the Act but also the actual wording of the document to ensure that the future possibilities that may arise will be covered by the new legislation or law. This can sometimes cause problems where meanings of certain words are ambiguous or unclear, making the interpretation of the new law difficult for the courts. However, it is a role of the courts to interpret the meaning and intent of the wording of an Act and apply that interpretation to the matter it is considering. In this way, the court might depart from the original meaning and interpret the intent of the law through its judgements.

The Acts Interpretation Act 1954 (Qld) has set out particular a number of rules on how to interpret parliament made legislation.

Question 68

analyse and evaluate the role of courts in law-making through the the development of legal principles through the application of the doctrine of precedent

Answer 68

The ‘doctrine of precedent’ is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. The doctrine of precedent was developed to promote consistency in decision-making by judges, on the basis that like cases should be determined in a like manner. Via consistency, the people can except equitable outcomes among different rulings.

Precedent may also cover an area of law previously uncovered by parliament made statutes, such is in landmark cases.

Question 69

analyse and evaluate the role of courts in law-making through the the development of legal principles through the application of the doctrine of precedent e.g Carlill v. Carbolic Smoke Ball Co [1893] 1 QB 256

Answer 69

The Carbolic Smoke Ball Co produced the ‘Carbolic Smoke Ball’ designed to prevent users contracting influenza or similar illnesses. His Lordship noted that the advertisement clearly contained a request for those who read it to perform an act (use the smokeball) and sincerity was demonstrated by lodging money at the bank. This was not a ‘mere expression of confidence in the wares’ of the defendant but was ‘an offer intended to be acted upon’.

In Carlill v Carbolic Smoke Ball Co, a decision often cited as a leading case in the common law of contract, the Court of Appeal held that an advertisement containing particular terms to get a reward is considered a binding unilateral offer that is accepted by anyone who completes its terms.

The judgement in Carlill V Carbolic Smoke Ball Co effectively extended the scope of the law of contracts in the absence of legislation, and this later led to laws regarding misleading advertising - Australian consumer law.

Question 70

analyse and evaluate the role of courts in law-making through the the development of legal principles through the application of the doctrine of precedent e.g Donoghue v Stevenson [1932] AC 562

Answer 70

Mrs Donoghue took legal action against David Stevenson, the ginger beer manufacturer. Her chances of success seemed limited. She could not sue Stevenson for breach of contract as she herself did not purchase the drink. It was also unlikely she could prove Stevenson had sold her a dangerous product or knew that his products were defective. Instead, her solicitor Mr Walter Leechman claimed Stevenson owed a duty to his consumers to take reasonable care to ensure his products were safe for human consumption.

In the House of Lords on 26 May 1932 Lord Atkin arose to deliver a judgment that would have a lasting impact on society. His decision established that a manufacturer of a product owed a consumer a duty of care.

“…a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

So, the judgement in Donoghue v. Stevenson effectively changed the Tort of negligence in the absence of legislation on the matter.

Question 71

analyse and evaluate the accountability of government, e.g. The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Fitzgerald Inquiry 1987-1989)

Answer 71

In May 1987 Acting Queensland Premier Bill Gunn ordered a commission of inquiry after the media reported possible police corruption involving illegal gambling and prostitution. Tony Fitzgerald QC was appointed to lead the “Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct”, known as the Fitzgerald Inquiry.

During the Inquiry, the terms of reference were extended to look into “any other matter or thing appertaining to the aforesaid matters”, which enabled Fitzgerald to further investigate evidence of political corruption.

Initially expected to last about six weeks, the inquiry spent almost two years conducting a comprehensive investigation of long-term systemic political corruption and abuse of power in Queensland. Public sittings were held on 238 sitting days, hearing testimony from 339 witnesses, and focusing public attention in Queensland and throughout Australia on integrity and accountability in public office, including policing.

The Inquiry changed the policing and political landscape in Queensland and across Australia. Significant prosecutions followed the inquiry leading to four ministers being jailed and numerous convictions of other police. Former Police Commissioner Sir Terence Lewis was convicted of corruption, jailed, and stripped of his knighthood, and former Premier Sir Joh Bjelke-Petersen was charged with perjury for evidence given to the Inquiry, although his trial was aborted due to a hung jury.