Unit 3 - political and legal power

Question 1

What is a representative government

Answer 1

= a key feature of Australia’s political system where the eligible voters elect, through free, fair and regular elections, members of Parliament (both the House and Senate) to put forward their interests and make decisions on their behalf. These elected officials (Members of Parliament) meet regularly and carry out a number of functions:

• participate in the law making process and ultimately make laws
• debate issues in Parliament
• monitor the expenditure of government and public money

Question 2

What is the ministry

Answer 2

= the entire collective of ministers and assistant ministers, including the Prime Minister. It is divided into an inner ministry of senior Cabinet ministers and an outer ministry of less important ministers and and assistant ministers.

Question 3

What is the shadow ministry

Answer 3

the group of senior Opposition members who form the alternative Cabinet to government. The Shadow Ministry should present itself as an alternative government which is developing policies in am effort to gain electoral favour

Functions include:
- scrutinise (hold to account) ministers for their policies and proposed legislation
- formulate alternative policies, with the aim of gaining electoral support.
- continue to represent the interests of their electorates
- Ultimately, to act as an alternative government

Question 4

Define Shadow Minister in Comm. Parliament

Answer 4

= a member of the Comm. Parliament who holds a senior position, or portfolio, in the Shadow Cabinet.

• Member of the Opposition who functions to review the work of their counterpart in Government, scrutinise them and offer alternative policies.

Question 5

Differentiate between the ministry and shadow ministry

Answer 5

• both groups are formed from elected members of Parliament, but the ministry is made up of the governing party whereas the shadow ministry is made up of members from the opposition party.
• the role of the ministry is to formulate policies, expenditure plans and legislation on behalf of the elected government, whereas the shadow ministry’s key role is to scrutinise the government, formulate alternative policies and act as an alternative government,

Question 6

Define the ‘Opposition’

Answer 6

= The political party that holds the second largest number of seats in the House of Representatives. They are often described as ‘government in waiting’. One of their roles is to scrutinise the Cabinet and hold Ministers accountable for their actions. Senators who belong to the same political party are also known as the ‘Opposition’.

E.G. The Liberal-National Party, led by Peter Dutton as of 2022

Question 7

What are the powers of the Opposition

Answer 7

1. scrutinising the policies and expenditure of the Government.
   - achieved through daily Question Time, when Parliament is sitting,
   - also censure motions
2. Opposing legislation
   - although a vast majority of bills pass through Parliament in bipartisan support
   - severely restricted in the House, as the Opposition doesn’t have the numbers to reject a bill
   - typically more power in the Senate if there is a ‘balance of power’, or a ‘hostile senate’ in which the opposition hold the majority of seats in their own right.
   - however, ^ is rare, as the opposition has very little effective power if the senate is ‘friendly’
3. members of the opposition have the right to sit on all committees
   - they can question witnesses and produce reports that can highlight issues with Government policies or legislation.
   - however, the Government can ignore the committee’s findings
4. Censure Motions and Motions of No Confidence
   - limited effectiveness in the House as the Opposition rarely have the numbers for the votes to be successful
   - more effective in the Senate if they hold the balance of power or a hostile senate
   - e.g. successful censure of Fiona Nash by the Senate, March 2014

Question 8

Define ‘Cabinet’

Answer 8

= The focal point of the decision-making process of government. It is composed of either the full Ministry, or a specified group of Ministers selected by the Prime Minister (e.g. Defence, Treasurer, Foreign Affairs - senior ministers).

Functions/Powers:
1. meets in secrecy to formulate government policy and agenda - e.g. industrial relations
2. deals with emergency/crisis - e.g. Coronavirus, 2020
3. allocates financial resources - e.g. budget expenditure
4. settles disputes between public service and ministers

Question 9

Outline Arguments For and Against the Idea that Opposition Doesn’t Keep Cabinet Accountable

Answer 9

For:

• The Opposition usually lacks enough numbers in the Lower House to block legislation or initiate a censure motion or motion of no confidence
• While the Opposition can refer legislation to the House committees for review and give opposing statements during the 2nd Reading of the passing of legislation, they can be voted down or ignored by the Government

Against:

• The Opposition is able to combine with minor parties and cross-benchers to block legislation or negotiate changes - e.g. Greens and ALP block bill to re-introduce ABCC legislation, 2016
• The Opposition has the power to call an election during a hung parliament and the power to dismiss a PM (through a motion of no confidence, providing they have the numbers)

Question 10

Define the ‘Governor-General’

Answer 10

Sir David Hurley, since 2019

Question 11

Outline Powers of The GG

Answer 11

1. appointing the members of Parliament, e.g. PM and other Ministers of State (s.62, s.64)
2. Appointing Justices to the High Court (s.72)
3. Issuing writs for federal elections and by-elections (s.32, s.33)
4. granting (and withholding) assent to legislation (s.58)
5. appointing senior government officials (s.67)
6. acting as Commander in Chief of the Armed Forces (s.68)
7. exercising the executive power which is vested in the Queen, as he is Her Majesty’s representative (s.2, s.61)

DISCUSSION:

• by convention, the GG should act ‘In-Council’ (on the advise of the PM) before making any decision or exercising any power.
• ‘reserve powers’ are only to be used in a ‘crave crisis’, however, there may be confusion for what a ‘grave crisis’ constitutes
• lack of accountability in place for if a GG uses their powers arbitrarily, such as by not seeking the PM’s advise as this is solely convention.

E.G. Sir John Kerr, 1975

Question 12

Outline the GG’s sources of power in the Const.

Answer 12

s.2
= The GG is appointed by the Queen and shall be Her Majesty’s representative in the Commonwealth. He shall exercise powers Her Majesty may be pleased to assign to him, but subject to this Const.

s.61
= executive power is vested in the Queen and exercisable by the Governor-General

Question 13

Define ‘Reserve Powers’ of the GG

Answer 13

= A constitutional power which the GG can exercise independently without requiring the advice of the elected government, the PM and/or the Federal Executive Council.

s.64 - the GG can appoint or dismiss ministers.

E.G. used by Sir John Kerr to dismiss the Whitlam Government without advising the PM

Question 14

one argument for and one argument against ‘the GG acted improperly by dismissing the Whitlam Gov’

Answer 14

FOR:

• Kerr sought advice from two Justices of the High Court (Sir Anthony Mason and Sir Garfield Barwick), regarding the legality of dismissing Whitlam = on breach of SOP and IJ
• Kerr also sought advice from the-then Opposition leader Malcom Fraser, who was later appointed PM by Kerr
• Convention states that the GG should act on the advice of the PM, which Kerr did not. In fact, Whitlam sought Kerr to call a half-senate election just prior to being dismissed.

AGAINST:

• Kerr had a responsibility to resolve an emergency situation, as the Opposition continued to block supply in the Senate, leading to the Whitlam Government running out of funds to cover expenditure.

Question 15

What does Federal Parliament consist of, according to s.1 of the Const.

Answer 15

the legislative powers of the Commonwealth shall be vested in a Federal Parliament,

which shall consist of the Queen, a Senate and a House of Representatives,

which is herein-after called the ‘Parliament’ or the ‘Parliament of the Commonwealth’

Question 16

Outline the significance of s.24 and s.53 of the Comm. Const. in terms of the relative power of the two Houses of Parliament

Answer 16

s.24
‘The House of Representatives shall be composed of members directly chosen by the people of the Comm. and the number shall be, as nearly as practicable, twice the number of the Senate. The number of members chosen in the several States will be in proportion of the respective numbers of their people’

• contains he ‘nexus clause’ (the House has a dominant position over the Senate)
• reflects Westminster system that the House is where gov is formed
• typically ensures the dominance of gov in a joint-sitting, reflecting principle of ‘the will of the people’

s.53
‘proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate […] the Senate shall not amend proposed laws imposing taxation or appropriating revenues or moneys […] shall not amend any proposed laws as to increase any proposed charge or burden on the people […] with this exception, the Senate shall have equal legislative power with the House […] the Senate may at any stage return to the House any proposed law’

• the Senate cannot propose or amend money bills
• again makes the House dominant in respect to all financial legislation
• Senate becomes ‘House of Review’
• The Senate doesn’t have to pass any legislation and can return it to the House, which can be powerful depending on the number of seats each party holds

Question 17

Identify a legislature in the US and discuss two powers of that institution

Answer 17

United States Congress

1. Article 1, Section 1:
   All legislative powers shall be vested in the Congress, which shall consist of a Senate and House
   = significant as it establishes Congress to be the sole federal legislative body
2. Article 1, Section 3
   the Senate shall have the sole power to try all impeachments (charges against the President)
   = establishes the Senate to be more powerful, in some respects, as it is the only chamber that can legally go against the President, holding him to account
3. Article 1, Section 7
   All bills raising revenue shall originate in the House of Representatives, but the Senate may propose or amend or concur/agree with Amendments on other bills
   = makes the House more dominant in this respect, as the only chamber which can initiate and amend financial legislation

Question 18

Define ‘political mandate’

Answer 18

= the authority or permission given by the voters at an election for a party or individual member/senator to pursue their policies, which were outlined throughout their political campaigning.

• often linked to the party who wins a majority of seats in the House (forming government), however, can also be applied to any person elected to Parliament.

E.G. Pauline Hanson’s One Nation party has a mandate to pursue the implementation of tougher regulations on immigrants.

Question 19

Explain why a minor party and/or independent in the Australian Senate could argue they have a mandate

Answer 19

1. An Independent senator has been duly elected by the people under the requirements of the Comm. Electoral Act (1918) and s.44 of the Comm. in regards to eligibility
2. It doesn’t matter how many 1st preferences the Independent receives, what only matters is that they achieve the quota.

E.G. the current sole Independent senator, Senator David Pocock of ACT (and first Independent Senator for a territory) has a mandate to pursue his policies and agenda, such as further action on climate change.

E.G.
- Senator David Pocock
- first Independent Senator for a territory (ACT)
- won seat from Liberal Zed Seselja
- only Independent senator currently
- has a mandate to pursure his policies - e.g. more action on climate change

Question 20

argue for and against the claim that ‘in recent years, political mandates no longer have any relevance in Australian federal politics’

Answer 20

FOR:

1. party campaigns are developed to secure votes, meaning that political promises are often made and then ignored once elected.

E.G. Tony Abbott campaigned there would be no tax cuts to the ABC, yet the Coalition still undertook tax cuts to the ABC after being elected (2013)

2. a governing party usually lacks control of both Houses of Parliament, meaning that they must negotiate their policies with minor parties and independents. This results in ‘water-downed’ policies, which is especially likely if the governing party is a minority government.

E.G. Julia Gillard campaigned that there would be ‘no Carbon tax under a Government I lead’, and then implemented a Carbon Tax under pressure from the Greens, since the ALP minority government didn’t have enough seats alone (2011)

AGAINST:

1. A number of election promises have been made and implemented, especially once the governing party has the numbers

E.G. The ALP repealed the Carbon Tax cut following the 2013 election

2. It is essential that parties outline their policies and agenda leading up to election to gain votes and win seats, as it shows they have a plan for the future of Australia. If they do not act on their promises, the voters can held them to account through the next election.

E.G. The ALP, following the 2011 failed promise of the Carbon Tax, the ALP was voted out of Government ad replaced by Tony Abbott’s Lib-National Party in 2013

Question 21

Discuss one factor that enhances the power of the Opposition and one factor that inhibits it in the Commonwealth Parliament

Answer 21

ENHANCES:

1. The Senate is not usually controlled by the Government which means the Opposition can work with minor parties and Independents to
   block legislation and scrutinise the Government. E.G. Senate Committees, which investigate legislation and propose amendments.

E.G. Opposition Liberal Party (led by Malcom Frasier) continued to block supply bills in the Senate in 1975

INHIBITS:

1. The nature of the Westminster system means that the Opposition lacks enough numbers in the House of Representatives to block legislation, pass censure or motions of no confidence
2. The Speaker of the House of Representatives are generally members of the governing party, and can therefore often be bias despite supposed to be unbiased.

E.G. Speaker Bronwyn Bishop ejected ALP (the Opposition) members 393 times, and Lib-National (the Government) members only 7 times during her tenure (2013 - 2015)

Question 22

Define the Federal Executive Council

Answer 22

= refers to the group, made up of the Prime Minister and Cabinet, who advise the GG on government matters.

s.62 - ‘… the members of the Council shall be chosen and summoned by the GG and sworn as Executive Councillors, and shall hold office during his pleasure’

Question 23

Explain the relationship between the GG and the Federal Executive Council as outlined in s.62 of the Const.

Answer 23

• The FEC are chosen and sworn in as Executive Councillors, who shall hold office during his pleasure (s.62)
• The FEC advise the GG on government matters

Question 24

for and against the power of the GG to dismiss a Minister, including the PM

Answer 24

FOR:

1. the GG’s position is to represent the Queen (ss.2, 61). If a Minister/PM acts outside of their assigned duties, or is found to be corrupt, then the GG can legally dismiss them.
2. s.62 states that the FEC (which by convention is the PM and Cabinet) are chosen and sworn in by the GG and hold office during their pleasure.

E.G. Gough Whitlam could not fulfil his duty to produce supply bills, 1975

AGAINST:

1. The GG is not elected to their position, which is incompatible with the principles of democracy. The GG represents the Queen who is sovereign to another country, meaning they do not reflect the will of the majority in Australia.
2. Westminster conventions state that the GG acts on the advice of the PM in all matters, as they are the chosen representative of the Australian people.

Question 25

Define ‘separation of powers’

Answer 25

= The principle that the powers of the government are allocated to different bodies; the legislative, executive and judicial arms, to prevent the arbitrary use of power (tyranny).

• In Australia, power is not completely separate, as there is a fusion of the legislative and executive arms, which also interfere with the appointment and dismissal of Judges in the Judiciary. This is due to the adoption of the Westminster system.

Question 26

Explain how the GG can ensure that the advise the GG is well-founded

Answer 26

1. he can ask questions and seek full information. The GG is entitled to seek further information to clarify any matter they are concerned about.
2. he can request a Cabinet meeting to further discuss matters of concern
3. he can ask the government to consider certain elements of the issue to ensure they have been thought through carefully.

Question 27

According to the Const. outline which bodies judicial power is vested

Answer 27

s.71
the Judicial power of the Commonwealth is to be vested in a Federal Supreme Court, which will be called High Court of Australia, and in such courts as the Parliament creates.

Therefore,
- High Court
- Federal Court
- Federal Circuit Court & Family Court

Question 28

Discuss the features of SOP in the US

Answer 28

Legislative: Congress
Bicameral = 2 chambers:
House of Representatives - fixed at 435, number of seats determined by pop.
Senate - 100 senators, 2 per state
Powers:
- introduce and pass Bills
- declare war
- may impeach the President for abuse of power

E.G. Congress impeached Trump (2019) and acquitted by Senate, Trump impeached Jan 2021 but acquitted Feb 2021 after leaving office.

Executive: President & Vice President
- elected separately to Congress, but cannot be memebers
- can appoint members to Cabinet, who also cannot be members
- President can veto legislation passed by Congress and grant pardons to convicted persons
- The Vice can preside over Senate during impeachment, which can lead to bias

Judicial: Supreme Court
- Final Court of Appeal
- has the power to interpret the Const.
- Judges are nominated by the President and confirmed by the Senate, can lead to bias
E.G. Amy Coney Barrel & Brett Kavanagh (2018) both conservative judges by Trump
- Judges hold life-time appointments which appear to adhere to judicial independence

COMPARISON
- much higher SOP as no arm can dominate each other
- however, in practice, suggest high levels of partisanship which can lead to bias

Question 29

Discuss the disadvantages faced by the shadow ministry

Answer 29

• do not have the majority of seats in the HoR and therefore struggle to block legislation and pass alternative legislation
• lack of media attention to discuss their policies
• limited access to resources compared to Government, e.g. lack of finances and information from public service

Question 30

Outline the role of the Const. monarch according to Westminster Conventions

Answer 30

Westminster conventions dictate that the Constitutional Monarch has little power in the operation of government, and primarily act as a ‘figurehead’

E.G. they are Head of State yet act on the advise of the PM regarding legislative and executive matters

Question 31

Outline the roles of the PM as head of Cabinet

Answer 31

• selecting members of the Government to be ministers
• chairing meetings in which the Cabinet discuss policies and examines bills
• enforcing conventions such as Cabinet secrecy and solidarity
• advising the GG on important matters such as the appointment of ambassadors and heads of government departments
• acting as the Head of the Federal Executive Council

Question 32

What issues does the political executive face under Westminster conventions

Answer 32

Westminster conventions that apply to the Political Executive:

1. the GG acts on the advise of the PM
2. CMR - the gov stands and falls together; if the government loses a vote of no confidence, they must resign
3. INR - ministers must take responsibility for mistakes in their department and misconduct

ISSUES:
1. there are many ‘grey areas’ relating to Westminster conventions. E.G. difficult to decide whether the GG should act on their own accord or on the advise of the PM and FEC.

2. Westminster conventions are unwritten and can therefore technically unenforceable. This can result in broad interpretation, inconsistent application and confusion and frustration among the public

Question 33

Define the political executive / real executive

Answer 33

= The part of the executive which refers to the Ministry of elected officials, commonly known as ‘government’. This includes the prime minister, who leads the government of the day, and the Cabinet. Established only through convention, rather than having any legal basis through the Constitution.

Question 34

Define the Constitutional executive / formal executive

Answer 34

= The formal, legally established part of the executive government, outlined in Chapter Two of the Constitution. Comprised of the Monarch and their Australian representative, the Governor General. Carries out the roles of the Head of State, such as presiding over the Federal Executive Council, dissolving Parliament when necessary, issuing writs for Federal election and granting Royal Assent on legislation.

Question 35

US power of the executive and legislature

Answer 35

Executive:

A2, S2:
The executive power shall be vested in the President and Vice President

A2, S2
The President shall be Commander In-Chief of the Army and Navy … he shall have power to grant Reprieves and Pardons for offences in the US, except in cases of Impeachment

Legislature

A1, S1
All legislative power shall be vested in Congress, which shall consist of a House of Representatives and Senate

A1, S3
The Senate will have sole power to try all impeachments (