ATAR 12 Politics and Law 2025

Political Power

Power wielded by the executive to carry out the law and implement government policy and power wielded by the legislature to create/amend statute law and influence political decision making.

Legal Power

Power wielded by Australian courts to interpret and apply the law when cases are brought before them and to create common law via the doctrine of precedent.

Responsible Government

The convention governing the formation of government in the Westminster System in which the executive is drawn from and accountable to the Parliament. Upheld through mechanisms such as individual and collective ministerial responsibility.

Representative Government

A form of government in which the people are sovereign but are represented in government by elected members of an assembly (parliament) acting as their representatives. Such representatives may be delegates, trustee or partisans.

Separation of Powers

A doctrine by which the functions of government to make, carry out, interpret and enforce the laws are dispersed in order to prevent the concentration of power. First described by French aristocrat, Montesquieu. A key feature of democracy. Complementary to checks and balances.

Division of Powers

The division of powers refers to the allocation of law making powers to the commonwealth, the states, and the local governments. In Australia, powers are divided into exclusive powers held solely by the Commonwealth (eg: s52 Commonwealth public service), concurrent held by both the Commonwealth and State powers (eg: marriage and taxation under s51) and residual powers not listed in the Constitution. If concurrent powers conflict, Commonwealth law will prevail under s109.

Westminster Conventions

Unwritten constitutional rules that govern the practice of government in systems derived from the British Westminster System. One convention is that the government is formed by the party which has the confidence (the majority) of the lower house of the parliament. Another is that the Governor-General always acts on advice.

Legislative Powers

The power to make statute law. The Commonwealth possesses legislative powers from the specific and enumerated exclusive and concurrent powers (heads of power) in the Constitution. Many of the Commonwealth's legislative powers are outlined in Section 51.

Executive Powers

According to s61 of the Constitution, executive power is vested in the Queen and is exercisable by the GG. Also pertains to the powers held by the PM and Ministers (executive) to carry out the law.

Judicial Powers

The power to adjudicate. To make decisions that have the force of law. To make legally binding decisions. The power exercised by the courts.

Non-Westminster Political System

The United States is a non-Westminster system as the executive is not drawn from the parliament; does not follow the Westminster model of responsible government. In the US, the executive is the President who is directly elected by the people and does not sit in Congress.

Functions of Parliament

Legislative, debate, representative, responsibility.

Section 7

The Senate: outlines the composition and terms of the Senate (representative government). Establishes representative government as Senators are to be 'directly chosen by the people'. Equal Senators per State.

Section 24

Outlines the composition of the House of Representatives. Establishes representative democracy as the HOR is to be 'directly chosen by the people'. Also called the Nexus Clause - HOR to be twice the size as the Senate.

Section 51

Details the legislative powers of the parliament, 40 mostly concurrent powers of the parliament.

Section 53

Powers of the houses in respect to legislation. The Senate shall have equal powers to the HOR except in relation to money bills; these shall not arise or be amended in the Senate.

Decline of Parliament

The argument that the modern parliament is unable to perform its major roles (legislative, debate, responsibility, representative) because of the rise of disciplined political parties and the dominance of the executive over the lower house.

Roles of the GG

Constitutional roles: call elections, grant royal assent, appoints ambassadors

Ceremonial roles: receives foreign dignitaries, opens new sessions of Parliament, invests honours

Civil roles: travels widely to meet Australians, open conferences , patronage to worthy groups.

Powers of the GG

Express powers: those used on advice of the Federal Executive Council. Include: calling elections, appointing Federal Executive Council and granting Royal Assent.

Reserve powers: those used without advice, on their own recognisance (in the event of political crisis).

Section 61

Executive power is vested in the Monarch and exercised by the Governor General.

Section 62

Establishes the Federal Executive Council to exist at the Governor General's pleasure.

Section 64

Governor General appoints officers to administer departments of State. On advice, the Governor General appoints and dismisses ministers. In practice, the PM chooses who the Governor General should swear in. Section used to dismiss Whitlam in 1975.

Section 68

The Governor General is the Commander in Chief of the Australian defence force. In reality, decisions are made by the PM and the defence minister.

Section 28

Duration of the House of Representatives: to continue for no longer than 3 years.

Section 57

Double Dissolution: if the HOR passes a bill, and the Senate fails to pass it, and if after an interval of three months, to HOR passes the same bill and the Senate rejects it again, the GG may dissolve the HOR and the Senate simultaneously. This last occurred in 2016 when the Senate failed to pass the ABCC legislation multiple times.

1975 Crisis

A constitutional crisis in which the Senate refused to pass supply, and the GG intervened to sack Gough Whitlam as PM and appoint Malcolm Fraser as caretaker PM on the grounds that he call an election. Called into question the operate of convention as the GG did not act on the advice of the PM.

Roles of the PM

The Prime Minister is responsible for the membership of the Cabinet and Cabinet committees, determines and regulates all Cabinet arrangements for the government. They also have the role of advising the Governor General on the appointment of Ministers and determines which Ministers will form Cabinet. The Prime Minister also guides discussion in Cabinet meetings.

Powers of the PM

The PM is the most powerful political player; their powers stem from the composition of parliament, support within their party, external factors (such as media and public support). Operates on the basis of convention; not mentioned in the constitution.

Roles of the Cabinet

The Cabinet's roles are to develop and communicate the narrative and vision of the government, to develop and implement policies, to coordinate the machinery of government, to act as an information exchange and to respond to crises.

Powers of Cabinet

Cabinet is often referred to as the 'engine room of government'. It's powers stem from the fact that it coordinates the machinery of government. Over 95% of legislation passed by parliament comes from Cabinet. Cabinet Ministers are the most senior and have control of the government departments and provide oversight of the implementation of laws. Governed by convention.

Roles of Ministry

Consists of Ministers with the roles of managing portfolios, participating in Cabinet meetings and deliberations on matters of policy development, to support Cabinet decisions publicly and to answer to the Parliament.

Powers of Ministry

Ministers are appointed by the GG under Section 64 to head government departments. Ministers are powerful because they: manage portfolios, participate in Cabinet meetings, set the parliamentary and legislative agenda, have access to government departments and media.

Opposition

Refers to the party with the second largest number of seats in the HoR (or the second largest non-governing party if government is in coalition). In the Westminster system, the opposition is the alternative gov. Its role is to hold the gov to account and be ready to form gov itself. Current Opposition is the Labor Opp and leader is Anthony Albanese.

Shadow Ministry

The opposition's front bench which is composed of spokespersons for each of the ministerial portfolios of gov. Each spokesperson, or 'shadow minister', scrutinises a gov minister.

Political Mandate

A claim for authority to exercise political and legal power within a State or nation. Can be specific or general "will of the majority" mandates; "balance of power" mandates; or "competing" mandates. EG: Turnbul had a mandate to implement the ABCC following the 2016 DD election.

Competing mandates

Broadly seen as "will of the majority" vs "balance of power" mandate. Gov and opposition can both claim a mandate in respect of certain issues, as may independent or minor parties, particularly those in the Senate.

Individual

Individuals in the political context include anyone acting upon their democratic right such as the right to vote, or individuals running as Independent candidates for parliament.

Political Parties

Political parties are groups or like minded individuals with similar ideologies who seek to win seats in parliament. They are categorised into major, minor and micro.

Pressure Group

Pressure groups are groups of like minded individuals with similar ideologies who seek to influence the political and legal process without running for parliament. Instead they use direct action, lobbying and court action to achieve their goals. They are categorised into sectional and promotional.

High Court

The High Court of Australia is the highest court in the Australian court hierarchy. It was established in 1901 by section 71 of the constitution, and is vested with appellate jurisdiction under section 73, and original jurisdiction under section 75 and 76. Notably, it has an important role in holding the other branches of government to account.

Section 71

This section establishes the High Court of Australia, and vests it with judicial power.

Section 72

This section outlines the regulations for the appointment, tenure and remuneration of Judges. It includes that the Judges shall be appointed by the Governor General, and after a referendum in 1977, they changed the maximum retirement age of Judges to 70.

Section 73

This section gives appellate jurisdiction to the High Court of Australia. As the highest court in the court hierarchy, it can hear appeals from "any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State".

Section 75

This section sets the original jurisdiction of the High Court. This original jurisdiction includes matters "arising under any treaty, affecting consuls or other representatives of other countries; in which the commonwealth is a party; between states; in which a writ of mandamus or injunction is against a Commonwealth officer is sought"

Section 76

This section provides additional original jurisdiction to the High Court, mainly pertaining to the interpretation of the constitution and interpretation of legislation. The High Court is the only court with the power to interpret the constitution.

Common Law Decision

Common Law is judge made law made in courts by judges when deciding cases which give rise to the need for new decisions or precedents. The doctrine of precedent is based on the principle of stare decisis. Precedents may bind lower courts within a hierarchy. They may be persuasive for higher courts, courts at the same level or courts in other common law hierarchies. Common law is inferior to statute law.

Constitutional Decision

Constitutional decisions are made by the courts in order to interpret the constitution. They do this by using legal maxim to make interpretations (not changes) of the wording of the constitution.

Federalism

A system of gov in which sovereignty is geographically divided between one central and two or more regional govs, each sovereign within their own sphere. Australia was intended to be a coordinate / dual federalism but evolved into a coercive system during the late 20th century and presently is perhaps best characterised as a cooperative system.

Exclusive Powers

Powers granted by the Constitution to the Commonwealth Parliament alone. They may be legislative or financial powers. Section 52 is an example.

Concurrent Powers

Powers granted by the Constitution to the Commonwealth and State Parliaments. They are shared powers. Section 109 invalidates State laws that conflict with Commonwealth laws, to the extent of inconsistency. EG: marriage, taxation

Residual Powers

Powers which are not mentioned in the Constitution; therefore states have the sole authority to legislate on them. Examples include emergency forces and education. States may individually designate their residual powers to the Commonwealth, like in the example of many states giving their counterterrorism powers to the federal government, although this is rare.

Section 52

Outlines the exclusive powers of Parliament, including the power to make laws with respect to the seat of government of the Commonwealth, matters relating to departments of the public service of which control is transferred to the Executive Government, and other matters declared by the Constitution to be within the exclusive power of Parliament.

Section 90

Makes the collection of customs and excise duties an exclusive power of the Commonwealth, and prohibits the States from imposing customs and excise duties.

Section 107

Saving power of State Parliaments: powers of parliaments that were previously colonies will continue to be in force in the State unless that have become a power of the Commonwealth.

Section 109

Outlines that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Taxation Power

Outlined in Section 51(ii), granting the Parliament the power to make laws with respect to taxation; but so as not to discriminate between States or part of States.

Tied Grant

Allows the Commonwealth to attach terms and conditions to the provision of grants to state under Section 96.

Section 51 (ii)

Taxation power. It is a concurrent power meaning it can be exercised by the Commonwealth and state governments. However, since the Uniform Tax cases of 1942 and 1957 the Commonwealth has dominated in the use of this power.

Section 87

Refers to the revenue gained through customs and excise, which was requires to be distributed to states for the first ten years after federation. However, this section became irrelevant in 1911, contributing to the beginning of a coercive federalism model in Australian politics.

Section 90

This section states that the federal parliament has exclusive power over customs, excise and bounties.

Section 92

Requires trade and movement of goods within Australia to be 'absolutely free'. This sections caused the movement towards a coercive federalist model through the landmark high court decisions of Ha and Hammond (1992).

Section 96

Allows the federal government to distribute financial assistance to the states via the grants power. This is the main method that states are financially assisted and contributes to coercive federalism in the ability of the federal government to implement condition, or tied, grants in order to interfere in states residual powers.

Vertical Fiscal Imbalance

An imbalance in the taxing powers and spending obligations between the 2 levels of government within a federation. In Australia, financial arrangements favours the Commonwealth such that they collect more revenue than needed, while states receive much less funding than required.

Horizontal Fiscal Equalisation

The requirement that the Commonwealth Parliament use its financial powers to equalise the standard of public service delivery in every state. It requires that some poorer states receive higher per capita grants than other wealthier states.

Grants Commission

An independent institution of federalism that is a statutory authority which administers the distribution of Commonwealth surplus revenues to states under s.96

Referral of Power

The mechanism under section 51xxxvii that allows states to transfer matters under their responsibility to the commonwealth. This rarely occurs as states are unusually unwilling to give up their powers and to increase coercive federalism.

COAG

An institution of Australian federalism. A meeting of the heads of Australian governments; the Prime Minister, the six State Premiers, Chief Ministers from the two territories and the President of the Local Government Association. It is the main forum within which cooperative federalism operates with programmes such as the National Reform Agenda developed within COAG.

Cooperative Federalism

A federal system in which the two levels of government work together to achieve outcomes. It requires strong institutions of federalism where the two levels come together to cooperate.

Coercive Federalism

Central government possess and exercises significantly more power than regional governments. Central government uses its powers (legislative/financial) to dictate policy to regional governments and interfere in other areas of sovereignty.

National Cabinet

Australian intergovernmental decision-making forum composed of the Prime Minister and the premiers and chief ministers of the states and territories, established on 13 March 2020 to coordinate the national response to the COVID-19 pandemic in Australia. has replaced COAG

External Affairs

Section 51(xxix) states that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to external affairs

Corporations Power

Section 51(xx) of the Constitution is a head of power which gives the Commonwealth Parliament the power to pass laws regulating corporations. Because the power is very broad and the High Court seems willing to expand it further (into areas like industrial relations) it has contributed significantly to changes in the federal balance of power and coercive federalism in Australia in recent times.

Section 128

Section 128 of the constitution provides a way to change the constitution, that being through referendums. For referendums to pass and the constitution to be changed, the bill must pass both houses of parliament, and then within 2-6 months after the bill has passed, a vote must be put to the people, and a double majority must approve a change (a double majority being both a majority of the population and a majority of states).

Unchallenged Legislation

The High Court has the power to declare Parliament's laws unconstitutional, which requires a statute to be challenged by a party with standing in the matter. If it is not challenged, then it stands as valid law regardless of its constitutional validity.

Participation

Supported by political rights, which empower people to participate in the government and includes activities such as voting, running for political office and assembling in protests.

Accountability

Political accountability is the requirement that all public officials, both elected and appointed, should be directly or indirectly answerable to the people. Westminster democracies like Australia feature an accountability process referred to as the chain of responsibility.

Rule of Law

The principle underpinning democracy whereby all citizens are subject to the law, and nobody is above the law. To ensure Rule of Law, it is necessary that laws are known, predictable and applied impartially.

Human Rights

Human rights are universal claims to certain freedoms and to certain entitlements which ensure dignity, respect and the ability to make genuine choices about one's own life. The fact that they are universal means they apply to all people regardless of their race, gender, nationality, socio-economic status or any other factor.

Civil Rights

A broad category of rights aimed at protecting people from discrimination and empowering them to live full lives within their societies and communities. EG: right to be treated equally.

Political Rights

Empower people to participate in the government of their country and includes examples such as the right to vote, the right to run for political office and the right to assemble.

Economic Rights

Entitlements to a minimum standard of living. They ensure that a person's material needs are met. Includes examples such as the right to work, own property and earn a minimum wage.

Social Rights

Enable a person to develop their life in a way of their own choosing. Includes freedom to choose your own marriage partner, have children and move between countries.

Cultural Rights

Applies to specific cultural groups based on ethnicity, religion or status. Commonly applied to first nations people and allow them to practice cultural traditions.

Open Government

The transparency of government and government processes, proceedings and documents for public scrutiny.

Natural Justice

A principle of justice incorporating rules against bias and the right to a fair hearing. This involves the expectation that all person s accused of a wrong require notice of what is accused against them, and the person adjudicating the dispute must have no actual or suspected interest in the dispute. All evidence used in a dispute that is relevant must be known and presented to the parties in a dispute.

Accountability of Parliament

The requirement that Members of Parliament must be held answerable for the power the people have delegated to them. All Parliamentary procedures must be transparent and open, to enable public scrutiny. In particular, Members of Parliament should be scrutinised for the way in which they uphold the functions of Parliament.

Senate Privileges Committee

A specific Parliamentary senate committee that is responsible for inquiring into and reporting on complaints of breach of privilege within Parliament. These committees act like 'courts within the Parliament' and may sanction a member found to have breached privilege

Judicial Review

Judicial review refers to the power of the courts to determine whether Parliament legislation, cabinet policy, and administrative decisions are legally valid. This enables the judiciary to strike down unconstitutional legislation and executive decisions.

Executive Accountability

Executive accountability is the requirement that the actions of the Prime Minister, Government ministers and public servants and should be scrutinised and transparent to the public. This ensures all executive officials are answerable to the people for the power they possess.

Collective Ministerial Responsbility

The convention that the whole ministry is accountable to and requires confidence of the House of Representative. This requires the ministry to uphold the rule of cabinet secrecy (cabinet meetings are private to allow for robust debate) and cabinet solidarity (minister should resign if they cannot publicly support cabinet decisions)

Individual Ministerial Responsibility

The convention that places ministers responsible for their personal conduct and the operation of their portfolio. This conventions makes it theoretically possible for Parliament to sack a minister for incompetence through censure motions

Auditor General

An independent statutory official who is the head of the Australian National Audit office and conduct audits into the performance, operation and finances of Government officials and departments, as well as conduct assurance reviews to ensure the public service adheres to specific laws, guidelines and regulations.

Administrative Appeals Tribunal (AAT)

A Commonwealth administrative body that conducts independent 'merit' reviews into administrative decisions made by Government departments and agencies. The body has no constitutional authority but is empowered in their role by relevant statutes, which enable them to set aside, affirm or recommend reconsideration of administrative decisions.

Public Confidence in the Courts

Public confidence in the courts refers to the levels of trust the public has that the court system will operate with independence, impartiality and integrity and guarantee the right to a fair trial. High levels of public confidence ensure that court decisions are accepted by the community and viewed as legitimate.

Transparent Trial Processes

Transparent processes in Australian courts refer to the openness of the court system, with court cases generally able to be publicly viewed and reported on by the media. Judgements and ratio decidendi are publicly available and can be subject to appeal.

Charter of Rights (statutory)

Legal document which sets out the rights and freedoms of all citizens. Legislation must uphold these rights and in examples like the United State, the highest court has the power to interpret whether federal legislation or court decisions may be overruled for going against the rights outlined in the charter. There are also non-legally-binding international charters of rights like the Universal Declaration of Human Rights, which are not made by individual states and therefore have no legal force unless ratified.

International Treaty

A formal binding agreement between states, synonymous with international covenant. These may be between two states (bilateral) or multiple (multilateral), and can be negotiated by third parties or international organisations like the United Nations.

Protocol

International agreement which amends or supplements a treaty or covenant, optional for original signatories, but with the same legal force once ratified.

Political Representation

Political representation is the idea that in a democracy, there should be a direct link between the people/voters and the representatives in the legislature. This may be through direct democracy where citizens have direct impact on legislation, or representative democracy where citizens elect Members of Parliament to make political decisions on their behalf.

Judicial Independence

The principle that the courts should be separate from the legislative and executive branches of Government and the free from interference and intimidation. This is important in preventing corruption and partisanship within the judiciary.