Year 12 WACE Politics and Law Unit 3 Flashcards 2025

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67 Terms

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Representative Democracy

Representative Democracy: Form of government in which the people are sovereign but represented in government by elected members of an assembly (parliament) acting as their representatives.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Constitutional Monarchy

Constitutional Monarchy: A government with a monarch as a head of state whose powers are limited by written or unwritten sets of rules.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Federalism

Federalism: A mixed mode of government where people is divided between the central government & regional government.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Westminster System

Westminster System: Name given to the system of parliamentary democracy used in Australia, Britain, Canada & New Zealand featuring a constitutional monarchy.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Responsible Government

Responsible Government: A political system where the executive is drawn & accountable to the legislative branch.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define: Separation of Power

Separation of Power: Division of government into the legislative, executive & judiciary with the aim of providing a system of checks & balances that prevents the excessive concentration of power into one group.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Define:

Convention: Unwritten constitutional rule that is accepted and consistently followed in practice (things that happen but aren’t written down).

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Outline Responsible Government As a Concept:

Responsible Government: A political system where the executive government, the cabinet & ministry, is drawn from & accountable to the legislative branch.

→ Whichever party won the majority of seats in the HOR becomes government with the leader of that party becoming Prime Minister.

Therefore, the members of the governing party or coalition parties holding a majority of seats in the lower house.
e.g., 2022 Labor won 77 seats forming a majority government
The idea that members of the government (i.e., ministers) are Members of Parliament is a convention but also outlined in S64 of the Constitution.
A minority government may hold office with the support of either independents or a small party
e.g., Four crossbench MPs declared their support for Labor on confidence allowing Gillard & Labor to remain in power with a 76–74 minority government in 2010.

→ Governments are held accountable to the people through elections (they can be voted out if people don’t like them), between elections parliaments function is to hold government accountable through questions, debate, committee investigation & votes of no confidence.

→ Government holds office while it retains the confidence of parliament & only exist as long.

If confidence is lost following a general election or by motion of no confidence during term, the PM & their ministers must resign.

→ The Fusion of the executive & legislative arms weakens the separation of powers as members of the executive have function related to the administration of laws in addition to those of ordinary members of parliament.

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The executive must maintain confidence of the lower house HOR – in practice if there is a motion of no confidence in by the HOR it must resign (collective ministerial responsibility, hold the executive responsible to the lower house).
→ Motions of no confidence moved by a non-governing party in the HOR will always be defeated as the governing party has the majority of seats & the party will always vote along party lines.
→ Dominance of party disciplines means the party with the majority will almost never lose the support of the lower house.
Cabinet Operates in Secret & Speaks as one.
→ Cabinet Secrecy: Despite ministers being part of parliament (complete separation of powers is impossible) some degree of separation of powers must be present.
- Therefore, Cabinet meets regularly & in secret in the Cabinet room which has no windows, is soundproof & regularly checked for listening devices.
- Records of meetings are protected by law & it is a criminal offence to leak information.
- Secrecy is important as ministers are assured, they can speak freely of any issue encouraging debate & discussion, if ministers knew their words would be leaked to the media or parliament it would negatively impact “the business of governing”.
→ Cabinet Solidarity: Once the Cabinet reaches a decision members (including those who disagree) must publicly support party decisions.
- Increasing apparent functionality & solidarity of government.
- If a minister cannot do this, they must resign from cabinet & return to parliament as an ordinary member (member of the legislature) otherwise known as returning to the backbench.
Individual ministers may be dismissed by a censure motion in the lower house (individual ministerial responsibility), this holds ministers accountable to the lower house for their conduct, competence & performance of their department.
→ Motions of no confidence moved by a non-governing party in the HOR will always be defeated as members of the governing party will always vote along party lines.
→ Motions against an individual minister in the Senate can be successful as no party tends to have a majority here.
→ E.g., in 2015 Senator & attorney General: In 2015, Attorney General George Brandis was censured by the Senate (55–32) after a motion by Penny Wong, citing his failure to uphold human rights. The motion had no legal impact, only causing political embarrassment.

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The principle of separation of power is that in order to prevent oppressive government the three arms of government should be separated, into the legislative, executive & judiciary.

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The separation of powers alone is insufficient to limit powers, a system of checks & balances is essential, good government therefore relies on power being shared by the legislative, executive & judiciary but also allows for accountability for each arm.

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Commonwealth of Australia Constitution Act 1901:

Chapter 1: The Parliament: Part 1 (General), Part 2 (The Senate), Part 3 (The House of Reps), Part 4 (Both Houses), Part 5 (Powers of Parliament).

Chapter 2: The Executive

Chapter 3: The Judiciary

Chapter 4: Finance & Trade

Chapter 5: The States

Chapter 6: New States

Chapter 8: Alterations of the constitution

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Legislative: As outlined in chapter 1 – The commonwealth poses legislative powers (exclusive & concurrent) giving them the power to make statute law that can be altered by high court interpretation changing the federal balance of power.

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Executive: Executive power is the power to execute/carry out law & make policy on how these laws will be implemented (section 62 establishes a federal executive council to advise). Executive power is vested in the King (Section 61 gives executive power to the King) but exercised by the Governor General (established in section 2).

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Judiciary: As outlined in chapter 3 – Judicial power exercised by the judicial branch (appointed not elected) is the power to adjudicate making legally binding decisions.

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Legislative, Executive & Judicial Powers with reference to the Commonwealth Constitution (Australia) & with comparison to one Non-Westminster Political & Legal System:

Legislative Powers: The Powers of the Commonwealth Parliament:

Describe the Legislative Power of the Commonwealth Parliament:

The commonwealth parliament has the legislative power to make statute laws.

The two houses have near identical law-making powers except the Senate cannot initiate or amend money bills (S53).

Legislative power is distributed between the Commonwealth parliament & the state parliaments (division of powers).

Legislative powers may be exclusive, concurrent & residual.

Describe the Powers of the Commonwealth Parliament:

Specific Powers (Enumerated Powers):

→ Outlined in S51 of the constitution also known as the ‘39 heads of power’ or enumerated powers.

→ These powers are given to the cmwth government by the constitution.

→ Specific powers are divided into exclusive & concurrent powers.

Exclusive Powers:

→ Section 52 of the Australian Constitution outlines the exclusive powers of the Commonwealth.

→ These powers can only be exercised by the federal government & not by the states.

Concurrent Powers:

→ Where both the cmwth & state parliaments share jurisdiction (S51 - marriage, divorce & bankruptcy).

→ Although some are exclusive to the cmwth by nature of other sections.

→ Concurrent powers are all powers in S51 that are not made exclusive (if there is a conflict between cmwth & state laws in relation to concurrent powers S109 deals with this)

Residual Powers:

→ Powers not given to the cmwth at the time of federation are left to the states, & therefore aren’t listed in the constitution, however some residual powers are made clear by the constitution

→ Section 107 of the constitution describes that any power left over from what is stated in the constitution is state jurisdiction.

Define the term ‘federation’ & explain how it impacts the legislative powers of the cmwth parliament:

→ The cmwth can make statutes according to areas of national concern specified & enumerated in the constitution.

The Significance of S53 in reference to the powers of the houses of the cmwth parliament

→ The houses described in the constitution have almost identical powers however the senate cannot initiate money bills.

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What is meant by the Constitutional Executive:
The executive created by S61 power in the king & his appointed representative the Governor General, the crown exercises its power on the advice of elected officials.

Explain the significance of the political executive (executive by convention):
The political executive, though largely unwritten in the Constitution, is essential for functioning government, it exercises political power through the Prime Minister & Cabinet. Governed by constitutional conventions, it ensures democratic accountability, effective policymaking, and the day-to-day administration of the nation.

Explain what is meant by the Governor General:
S2 establishes the Governor General as the representative of the King, S61 gives the Governor General executive power to create state and execute on behalf of the queen.

Define the term ‘Federal Executive Council’:
The formal executive, a council created by S62 of the constitution composing of the GG & Ministers.

Distinguish between the Head of State & the Head of Government in the Australian political System:
The head of state is the King/Monarch while the head of government is the Prime minister.

‘The Constitution must be read with an understanding of Responsible Parliamentary Government to achieve an accurate picture of Australia’s system of Government’ Discuss:

→ The Australian Constitution outlines the structure of government, including the separation of powers, the role of the GG, & the responsibilities of Parliament.

→ It does not explicitly detail key aspects of governance, such as Responsible Government & the Prime Minister’s role—these exist as conventions inherited from the British Westminster system.

→ While the Constitution vests executive power in the Governor-General (S61), in practice, this power is exercised on the advice of the elected government.

→ The Prime Minister & Cabinet are not mentioned in the Constitution, yet they’re central decision-makers in government, operating under conventions requiring them to maintain the confidence of the House of Representatives.

→ A literal reading of the Constitution would suggest a far more Governor-General-centric system, rather than the Parliamentary Democracy that operates in practice.

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Judicial Powers with reference to the Commonwealth Constitution:

→ The Commonwealth Constitution vests judicial power exclusively in the High Court & other federal courts established by Parliament, ensuring a strict separation from legislative and executive functions.

→ Section 71 confirms this by explicitly assigning judicial authority to these courts.

→ The High Court, as the highest judicial body, interprets the Constitution, resolves legal disputes, and has the power to declare laws unconstitutional if they exceed parliamentary authority.

→ While Parliament can amend ordinary laws, it cannot alter the Constitution without a referendum.

→ Judges are appointed by the Governor-General on ministerial advice and can only be removed by both Houses of Parliament for proven misbehaviour or incapacity, safeguarding judicial independence.

With reference to the Commonwealth Constitution describe Judicial Power in Australia:

→ Judicial power in Australia is defined & vested by Chapter III of the Commonwealth Constitution, establishing the High Court of Australia & allowing for the creation of other federal courts by Parliament.

→ Section 71 explicitly states that judicial power is exercised by these courts, ensuring a strict separation from legislative & executive powers.

→ Judicial power includes interpreting & applying laws, resolving disputes, & determining the constitutional validity of legislation.

→ The High Court, as the highest judicial authority, has the power to strike down laws that exceed Parliament’s constitutional authority.

→ Judges are appointed by the Governor-General on ministerial advice & can only be removed by both Houses of Parliament for proven misbehaviour/incapacity, ensuring judicial independence.

→ Additionally, while Parliament can amend ordinary laws, constitutional changes require a referendum, reinforcing the judiciary’s role in upholding the rule of law & the integrity of the Constitution

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:
Overview of the Constitutional Sections:

Overview of the Constitutional Sections:

Section 7:

→ States house

→ Senators are directly elected

→ Each state forms a single electorate

→ Each of the original states have the same number of senators

→ Sets 6-year terms

Section 24:

→ Creates the HOR as the people’s house

→ Directly chosen by the people

→ Nexus Clause: Ties houses together in terms of the size

→ Limits any of the original states to no less than 5 members - Tasmania

Section 50:

→ Parliament makes its standing orders

Section 51:

→ Federalism

→ Lists the 40 heads of power

→ Considered concurrent

Exclusive powers S114, S115 & S109

Section 53:

→ Two houses are equal in power however the senate cannot make/amend money bills.

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:

Causes of Executive Dominance:

Responsible Parliamentary Government: The Executive is drawn from & accountable to the legislative, government must maintain the support of the lower house.

→ Principle: The party with the majority in the HOR forms government with the leader of that party becoming Prime Minister.

This creates a fusion of the two arms of government where the executive sits within the legislative.

Party Discipline: The ability of a parliamentary group of a political party to get its members to support the policies of their party leaderships, meaning party members must support their party in Parliament e.g., the Labor party employs a caucus on its members

→ E.g., votes on the floor of the lower house

→ Benefits: Party stays in government as its majority’s guaranteed, winning every vote in the lower house.

This creates party discipline ensuring partisan representation.
Party line & Party Bloc

Numbers in the HOR as of 2025:

→ Liberal: 39

→ National: 14

→ ALP: 77

→ Greens: 4

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:

How the Composition of the HOR affects the functions of Parliament:

→ If there is a clear majority of the government then there is clear executive dominance.

→ This ensures the functions of representation, legislation, responsibility & debate are aligned with the government of the day.

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:

Impact of the Electoral system (majoritarian/preferential voting system) used in the HOR on the Composition of Parliament:

→ The majoritarian preferential voting system impacts the composition of parliament by favouring major parties & ensuring elected candidates have broad voter support.

→ The preferential voting system requires voters to rank all candidates in order of preference.

If no candidate secures an absolute majority (50% +1) of first-preference votes, preferences are distributed until one candidate reaches a majority.

→ This process benefits the two major parties by consolidating votes through preference flows, disadvantaging smaller parties & independents.

Consequently, the HOR has a two-party dominance, with minor parties & independents struggling to win seats unless they have strong local support or benefit from preference deals.

→ This system enhances electoral stability but limits proportional representation.

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:

Functions of Parliament:

Representation:

In Theory:

→ Section 7 & section 24 of the constitution outline that members of the HOR must be elected by the people earning it the title as the ‘peoples house’.

→ Delegate representation is present in both the HOR & Senate but held to a greater degree in the HOR with the MP acting as the mouthpiece of their electorate reflecting the electorates thoughts & concerns in parliament.

→ Trustee representation is present whereby judgements are made in the best interest of an MPs constituents - In the Senate, trustee representation is arguably more pronounced, as Senators are elected for six-year terms (except for half-Senate elections) and represent entire states rather than individual electorates.

In Practice:

→ MPs vote along ‘the party line’.

→ Crossing the floor is rare but there may be exceptions
e.g., 2024, Fatima Payman crossed the floor supporting a Green’s motion recognising Palestine as a state, defying Labor's party line. This highlighted internal divisions within the party on foreign policy causing debates on conscience voting & party discipline.

→ In the Senate there is greater evidence of mirror representation due to proportional voting.

→ Major parties are more willing to preselect more diverse candidates for the senate due to greater chances of multiple party members winning seats.

→ In the senate there is greater evidence of delegate & trustee representation as senators are more resistant to party politics due to their six-year terms diluting the influence of party discipline.
e.g., Senator Lidia Thorpe’s left the Greens in 2023 over disagreements on the Voice to Parliament prioritising personal judgment & principles over party policy or direct voter mandates. This reinforced the Senate’s role as a chamber where members, especially crossbenchers, can exercise greater independence compared to the more party-disciplined House of Representatives.

→ The rise of independents results in trustee & delegate models of representation as some voters turn away from major political parties
e.g., 2019: Zali Steggall replaced Tony Abbot in long-term liberal seat

Legislating:

In Theory:

→ Parliament makes laws that are scrutinised through the second reading of the statutory process & committee stage exemplifying the senates role as the house of review,

→ Parliaments legislative process features diversity of input & rigorous debate.

→ Legislation can be initiated by any MP – government bills & private members bills.

In Practice:

→ Government sets the legislative agenda: 90% of bills are introduced by the government.

→ Private members bills rarely make it past the first reading – those that are passed through both houses are the exception.

→ In the HOR the executive can use parliamentary tactics (gag, guillotine & floodgates) to minimise debate & speed up the legislative process.

→ Government can use these tactics as it has control of the lower house through party discipline.

→ The executive is less dominant in the senate as they don’t control member composition.

→ There is less use of gags, guillotines & floodgates in the senate as there is more scrutiny.

→ The composition of the senate ensures democratic diversity of legislating, compromise & consensus with the balance of power resting with the crossbench.

→ Committee composition reflects the make up of the senate enabling them to curtail the influence of a dominant executive.

Responsibility:

In Theory:

→ Westminster chain of responsibility: executive is drawn from & responsible to parliament whereby government exists only with the support of the lower house.

→ CMR – successful vote of no confidence will dismiss Government

→ IMR – ministers dismissed by a censure motion

→ Question time – Important mechanism where the legislative can hold the executive accountable as ministers must answer to questions put to them.

→ Parliament scrutinises government spending through Section 53 money bill constraints.

→ Importance of committees such as the estimates committee in holding the executive responsible is exemplified.

In Practice:

→ Executive dominance means the government will never loose support of the lower house.

→ Motions of no confidence & censure motions will be defeated on party lines in the HOR.

→ Senate has a greater chance of success with censure motions however IMRs are non-enforceable in the senate.
e.g., George Brandis was censured by the Senate for trying to get HRC Gillian Triggs to resign & more recently Richard Coelbeck (2020).

Debate:

In Theory:

→ Senate is the Nations highest forum for debate

→ Closely linked to legislative function

→ Parliamentary Privilege: MPs are afforded legal immunity (defamation) to protect debate & promote freedom of speech in the senate.

→ Question time is an essential feature of the Westminster system based on responsible government allowing for a natural forum for debate.

In Practice:

→ Debate suffers under executive dominance

→ Government can reduce time for debate by extending time for government business or by manipulating standing orders.

→ Impartiality of the speaker is vital in ensuring the debate function is operating well.

→ Gag & Guillotine limits debate.

→ However, debate also occurs in committees - less adversarial, more effective & collaborative.

→ Debate in the Senate is more effective as not dominated by the executive

→ Effective debate can also occur in party rooms

→ Standing orders: Rules for how parliament sits dictating acceptable behaviour & consequences.
This leads to an issue whereby government can change the standing orders (Section 50 – parliament can create its own standing orders) giving them control over the running of parliament.

→ Example of standing order: Speaker of the HOR has the power to remove a member of the HOR from the chamber for one hour, removing the member from debate votes, a good example of a speaker would be Tony Smith and a bad example would be Bronwyn Bishop.

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The Functions of the Commonwealth Parliament in Theory & in Practise including Sections 7, 24, 51 & 53:

Discuss the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (Medevac) as a case study for “Overriding Executive Dominance”:

→ Turnball left his seat in the election of Wentworth in the HOR being replaced by independent Kerryn Phelps

→ The Morrison Government (Liberal-National Coalition) opposed the bill, arguing it would weaken border security & encourage more boat arrivals.

→ The bill passed due to a rare defeat of a sitting government in the House of Representatives on legislation, made possible by the Labor Party, Greens, & crossbenchers, demonstrating parliamentary authority overriding executive control.

→ The passage of the Medevac Bill was made possible by the support of independent & minor party Senators, such as Kerryn Phelps, who advocated for humanitarian treatment of asylum seekers.

This underscores the role of the Senate as a check on executive power, forcing government accountability on contentious policy issues.

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Relevant Constitutional Sections:

Section 61:

→ Executive power vested in the monarch & exercised by the GG.

→ In practice the GG Acts on the advice of the federal executive council (GG in council).

Section 63:

→ Governor General in council refers to the GG acting with the advice of the federal executive council.

Section 64:

→ The GG appoints officers to administer departments of State.

→ In advice the GG appoints & dismisses Minister.

→ In Practice the PM chooses who the GG should swear in.

→ “Such officers shall hold office during the pleasure of the GG they shall be members of the Federal Executive Council.

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

The Real/Political Executive:

Prime Minister: Head of government & chief executive officer leading the cabinet & ministry, the authority of the Prime Minister stems from Westminster convention

→ Prime ministerial power has no legal basis in the constitution, it does not mention it in office.

Ministers: Members of the executive along with the Prime Minister.

→ Must be members of parliament (S64), drawn from the senior ranks of the majority party & may be drawn from the Senate.

→ 70% of ministers are from the HOR & 30% are from the Senate

→ Chosen by the PM who allocate their portfolios & appointed formally by the GG (S64).

→ There are never more than 30 some of which may hold multiple portfolios.

→ Their role is to manage their portfolios

e.g., Penny Wong is the Minister for foreign affairs, Richard Marles ministers for Defence, Jim Chalmers treasurer.

→ Their role is to participate in Cabinet meetings:

Play a crucial role in decision making at the highest level of government.
Debating & shaping government policies within cabinet meetings
Contribute expertise from their portfolios to inform government decisions
Maintaining cabinet solidarity meaning they must publicly support cabinet decisions.
Not all ministers are cabinet ministers – some are junior or assistant ministers without a seat in cabinet.

→ Their role is to publicly support cabinet decisions/support the governments narrative:

Ministers must uphold & publicly defend cabinet decisions even if they personally disagreed with them during discussions – ensuring a united front.
If a minister publicly criticises a Cabinet decision they may be forced to resign or be dismissed by the Prime Minister
E.g., In 2015 Malcom Turnbull Resigned as Communications Minister before challenging Tony Abbot for the leadership as he disagreed with government policies.

→ Their role is to answer to parliament:

Ministers must justify their actions & government policies during question time in Parliament.
E.g., The treasurer must explain budget policies & economic decisions in the HOR.
This upholds ministerial accountability – a key principle of responsible government

Cabinet: The cabinet is the ‘executive committee’ of senior Ministers drawn from & responsible to the parliament formally appointed by the GG under S64 of the Constitution.

→ Only senior ministers hold cabinet rank – either as members of the inner, outer or assistant ministry.

→ The Prime minister picks who are ministers at his/her discretion.

→ Cabinet Reshuffle: The process where a head of government reorganises the composition of ministers in their cabinet.

No justification is needed
The GG will accept whatever decision is made in regard to reallocation of portfolio.
E.g., Home Affairs & Immigration Portfolios: NZYQ
Ministers Clare O’neil & Andrew Giles were replaced due to criticisms over their handling of immigration issues
Tony Burke assumed responsibility for these portfolios consolidating multiple roles into a powerful position.
E.g., Indigenous Australians Minister:
Senator Malarndirri McCarthy was promoted to this role, succeeding the retiring Lina Burney.
E.g., Skills & Training Portfolio:
Andrew Giles Transitioned to this role outside the cabinet, while Murray Watt was promoted to lead the Employment & Workplace Relations portfolio.

→ Cabinet Secrecy: Despite ministers being part of parliament (complete separation of powers is impossible) some degree of separation of powers must be present.

In Practice: Therefore, Cabinet meets regularly & in secret in the Cabinet room which has no windows, is soundproof & regularly checked for listening devices.
Records of meetings are protected by law & it is a criminal offence to leak information.
In Practice: Secrecy is important as ministers are assured, they can speak freely of any issue encouraging debate & discussion, if ministers knew their words would be leaked to the media or parliament it would negatively impact “the business of governing”.
In Practice: Minutes are recorded but kept secret for 20 years
In Theory: E.g., In 2022 Barnaby Joyce leaked information through leaked texts to the media about information relevant to the context of cabinet & the Prime Minister.

→ Cabinet Solidarity: Once the Cabinet reaches a decision members (including those who disagree) must publicly support party decisions.

In Practice: Increasing apparent functionality & solidarity of government.
In Practice: If a minister cannot do this, they must resign from cabinet & return to parliament as an ordinary member (member of the legislature) otherwise known as returning to the backbench.
In Theory: E.g., Barnaby Joyce was in breach of cabinet solidarity & faced calls from Labor that he must resign after he criticised the approval of a mine
At the time Mr Joyce was the Minister for agriculture, a senior cabinet minister & the deputy leader of the nationals.
He contradicted Prime Minister Tony Abbott by saying he opposed the approval of the mine.
However, he did not resign.
In Theory: E.g., In the first 2018 leadership spill against Malcolm Turnball there was an unsuccessful vote against his leadership within the Liberal party room
Having voted against his leadership, Ministers Mathais Cormann, Mitch Fifield & Michaelia Cash announced their intended resignations from the ministry in respect of Cabinet solidarity & add pressure to Malcolm Turnball to resign as Prime Minister.

→ Cabinet Committees: Cabinet may be divided into smaller groups to focus on specific areas.

E.g., National Security Committee (PM, Deputy, Foreign Minister, Defence Minister, Immigration Minister & Attorney General – holders of portfolios linked to security) do not require the endorsement of Cabinet focusing on major international security issues of importance to Australia (i.e., Lindt Café siege).
Committees meet separately from the main cabinet & clear decision with the whole of Cabinet.
E.g., Expenditure Review committee (PM, Deputy, Treasurer, Finance Minister & Health Minister) has a critical role in developing the annual budget identifying savings & eliminating efficiencies. (i.e., package supporting farmers affected by the drought in NSW & QLD)

Ministry: Comprised of all ministers regardless of rank encompassing the whole parliamentary executive branch. Together they form the Federal Executive council EXCO & formally advise the Governor Genera on the administration of the Commonwealth of Australia.

→ Exco – in Reference to the Constitution: Made up of all government ministers & the GG, the full council does not meet; representatives meet with the GG advising on the work of government. Policy is not debated at council meeting – the council makes sure government decision are documented & legally valid under the constitution.

→ Distinguish between the “inner ministry” and the “outer ministry”:

Inner ministry: Senior Ministers with important portfolios & the PM
Outer Ministry: Junior Ministers & Assistant Ministers hold less important portfolios.

→ Link between the PM, Cabinet, Ministry & Public Servants:

PM wins a majority in the House of Representatives chosen by their party rather than elected directly by the people.
Cabinet consists of senior Ministers, who are elected Members of Parliament (MPs) from the governing party. The PM selects them to lead key government departments.
Ministry includes all Ministers (both in and outside the Cabinet). Like Cabinet Ministers, they are elected MPs chosen by the PM.
Public Servants are not elected; they are government employees hired based on merit to implement policies & support Ministers in running government departments

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Roles & Powers of the Prime Minister:

The Prime Minister’s Power derives from:

Being the leader of the majority party in the HOR:

→ Leader of the party holding majority in the HOR

→ Called upon by the GG to form a government under S64

Contemporary Issue: Potential for constitutional uncertainty in a hung parliament.
When no party holds a majority in the HOR the GG must decide who to invite to form government, this can lead to political instability.
e.g., 2010 Australian federal election, neither major party had a majority, the GG relied on negotiations with independents & minor parties before appointing a PM.
Contemporary Issue: Discretion of the GG in dismissing a PM.
e.g., 1975 constitutional crisis when GG Sir John Kerr dismissed PM Gough Whitlam despite Whitlam having the confidence of the House, raising concerns about the extent of the GG’s power under Section 64 & whether it could override democratic processes.

→ All authority stems from Westminster Conventions.

Being the Chairperson of Cabinet Meetings:

→ The PM is the chair of all Cabinet meetings having the power to determine business & priorities of government.

→ Controls the Cabinet Agenda – items not on this list are not discussed

→ PM Priorities are the government priorities.

Access to Information:

→ PM is the most informed individual

→ Receives advice from all departments

Patronage:

→ As a leader of the majority party & Cabinet the PM has power to:

Appoint parliamentary members
Promote members of the Outer Ministry into the Cabinet
Allocate portfolios
Demote/Dismiss any Minister or assistant Minister

→ It gives the PM power to reward & punish other members or demote potential rivals

→ E.g., In Scott Morrison’s term as PM his patronage was composed of like mined conservative male Liberals who were non-confrontational & weren’t as aligned to Turnbull.

Determining the Election Date

→ Constitution sets a 3-year maximum term

→ Gives the PM power over electoral cycle

→ Timing of an election is a politically strategic decision

Being the Public Face of Government:

→ Media: Bushfires 2019 – Grace Tame & Brittany Higgins 2021

→ PM is the most recognised figure in the government

→ Most Media attention is on them & competent media performers can enhance their power – Tony Abbot has embraced new social media through YouTube, X, & Facebook etc.

The Prime Ministers Power is Limited by:

Not having a personal Mandate:

→ Personal Mandate is the authority granted to a political leader (PM) on their personal popularity & direct support from the electorate.

→ Australian PMs don’t have a personal mandate whereas American Presidents do

→ The PM is a member of the House.

→ Their duties as PM are in addition to representing their electoral in the Australin Parliament.

Lack of solidarity & Unity in Cabinet:

→ Party Loyalty: Members crossing the floor on the Religious Discrimination bill (2022); Text messages scandal – Barnaby Joyce (‘hypocrite’ and ‘liar’).

E.g., 2018 leadership spill – downfall of Malcolm Turnbull, Turnbull faced growing dissent within his Cabinet & party over policy issues, particularly climate policy. Amid internal divisions, senior Ministers, including Peter Dutton, challenged his leadership, leading to a leadership spill, where Turnbull lost the confidence of his colleagues, & Scott Morrison was elected as the new PM.

Rivals within Cabinet or Parliamentary Party:

→ Collegial Cabinets reach decisions in a consensus style, cabinets plagued by rivalry & differences reach decision by majority or Prime Ministerial authority.

→ Rudd’s Cabinet 2007-2010 was dysfunctional due to Rudd’s over exercise of power

→ Howard had a stable Cabinet making decisions by consensus

→ Morrison’s Cabinet was Contentious and disunited.

Constraints Imposed by their own Party:

→ Cabinet Policy is influenced by party’s ideology:

→ ALP: ‘Social Democratic’ meaning fairness & equity + active role of govt.

→ Liberals: ‘Liberalism’ meaning advocates for individual & small business.

→ Greens: Social equity, progressive, more left wing

→ E.g., Liberal Party is often described as a "broad church", including both progressive & conservative factions. This diversity can limit a PM’s ability to implement policies that do not satisfy both sides:

Malcolm Turnbull (2015–2018) was constrained by conservatives within his party on issues like climate policy and same-sex marriage, leading to internal conflict and ultimately his downfall.

→ E.g., Labor Party traditionally has a strong ideological foundation, with influence from trade unions, progressive social policies, & economic interventionism. While usually more unified than the Liberals, internal divisions still arise:

Kevin Rudd (2007–2010, 2013) was challenged by factions within Labor, particularly over his leadership style and policy decisions (e.g., climate action and the mining tax), leading to his removal by Julia Gillard in 2010.
Julia Gillard (2010–2013) faced backlash from within Labor for introducing a carbon tax, despite previously stating she would not. This division contributed to Rudd regaining leadership in 2013.

Constraints Imposed by a Coalition Party:

Can limit the Prime Minister’s power because the junior coalition partner can block or force changes to policies, when their interests differ from the senior partner

→ E.g., The national’s Response to the Liberal’ Climate Change Policy (2021-2022)
2021, Scott Morrison (Liberals) sought to commit Australia to net zero emissions by 2050 ahead of the COP26 Climate Summit. However, Nationals, traditionally representing rural & regional voters, resisted this policy due to concerns over its economic impact on agriculture, mining, and regional jobs.

Limits Power Via: Delays & Concessions – The Nationals, led by Barnaby Joyce, refused to support the net zero target unless concessions were made, (funding for regional industries & protections for coal and gas jobs), forcing Morrison to negotiate rather than dictate policy.
Limits Power Via: Internal Division – Some Nationals such as Matt Canavan, rejected the net zero target, creating public division within the Coalition & weakening Morrison’s authority.
Limits Power Via: Watered-Down Policy – To secure the Nationals’ support, Morrison avoided setting clear short-term emission reduction targets offering significant financial incentives for regional areas, making the policy weaker than what some Liberals & international allies wanted.
Limits Power Via: Political Damage – Coalition’s internal divisions on climate policy contributed to voter backlash in the 2022 federal election, with the Liberals losing seats to independents ("Teal" candidates) who campaigned for stronger climate action.

Federalism:

→ Imposes a constitutional limit on the Prime Ministers power.

→ Section 51 of the Constitution divides responsibilities between the Federal government & the States.

→ Co-operation with the state is an important element in ensuring political stability.

→ Disagreements with State Premiers undermined Scott Morrison’s position as Prime Minister → However, the Federal government’s dominance over financial matters has given Prime Ministers an edge in dealing with the States.

Size & Nature of the House Majority:

→ If after a federal election no party or coalition of parties achieves a majority in the House of Representatives it will result of a hung parliament.

→ It is still possible for a government to be formed if a majority can be achieved through agreement with an independent and/or minor party members known as a minority government.

→ Despite perceptions that former prime minister Julia Gillard’s term was unstable her minority government managed to pass more than 560 pieces of legislation.

The Opposition:

→ Largest party – or coalition of parties – that does 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 government if it was to win the support of the majority of members.

→ Role of the Opposition: They have an important role in keeping the government accountable to the Australian Parliament, they do this by:

Scrutinising: Closely examining the work of the government, asking the government to explain its actions especially during Question Time.
Debating Bills: Proposed laws in the Parliament thoroughly
Working on Committees: Examining bills & important national issues
Alternatives: The opposition provides alternatives to government policy

→ Opposition Leadership: By convention the Leader of the Opposition is always a member of the HOR, the Leader of the Opposition in the Senate is head of the opposition members in the HOR.

Negative Media Attention

→ Negative media attention will result in poor public perception

→ Negative polling can adversely affect election results

→ Media can impact a prime minister as no media coverage is the same

Minority Government:

→ Exists where a government lacking an outright majority of seats depends on the support of other parties or independents in the lower house

→ A party or coalition doesn’t need a majority in the lower house to be able to form government.

E.g., 2018 – Dr Phelps (independent) took up her seat with a crossbench of six members in the HOR with Labor holding 69 seats & the coalition one short majority of 75, Turnbull resigned resulting in the Medevac Bill passing

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Roles and Powers of Cabinet (The Engine Room of Government)

Develop and communicate the narrative of government:

→ Cabinet solidarity, ideology & discipline of the governing party provides the narrative

ALP Cabinets – Advocate for active role of government in leading progressive change in society, with a current emphasis on minimising the cost of living, alleviating inflation & balancing inflation.
Coalition Cabinets – Advocate for individual & small business initiatives as well as small government.

Develop & Implement Policies:

→ The Cabinet can implement legislation

→ 90% of legislation is introduced by Cabinet

→ The Albanese government has already enacted polies such as the Climate Change Act of 2022 through legislation.

Allocate Resources:

→ The allocation of resources needs to be coordinated to avoid conflicts & wastes of taxpayer funded resources

i.e., The Expenditure Review Committee (ERC) (a subcommittee of Cabinet) decides the government's key spending priorities based on economic conditions, political goals, & public needs.

Coordinate the Machinery of Government:

→ Cabinet is the central decision-making body ensuring all government operations run smoothly, policies are implemented effectively, & departments work together efficiently to serve national interests.

→ Cabinet has the power to make structural changes within government, such as:

Creating, merging, or abolishing departments to improve efficiency.
Transferring responsibilities between departments or ministers.
Reorganizing agencies to better align with government priorities.

Act as an Information Exchange:

→ Serves as the central hub for information-sharing within the government, ensuring ministers are informed about key issues, policies, & national developments.

→ Allows for coordinated decision-making and a unified government approach.

→ Cabinet meetings provide a forum where ministers:

Discuss government policies and their impacts.
Share updates from their departments on major issues.
Coordinate responses to national and international events.

→ Preventing siloed decision-making, ensuring ministers work together rather than in isolation.

Respond to Crises:

→ Cabinet can exercise power rapidly & decisively in emergencies

→ E.g., Stage 3 Tax Cut Revisions 2024 Facing high cost-of-living pressures & inflation concerns, the Albanese government reassessed original tax cuts: Cabinet’s Expenditure Review Committee examines economic data, consulted Treasury experts & considered public sentiment before adjusting the policy – exercising its executive power, Cabinet announced the revised plan, coordinated legislative changes, & worked with government departments to ensure smooth implementation.

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Factors affecting the Functioning of the Cabinet:

Impact of the PM on Cabinet’s Function:

Personality of the PM can be critical to the Cabinet decision making process

→ E.g., Scott Morrison’s Ultra-Religious views informed his leadership style, often prioritizing conservative social policies & moral frameworks in Cabinet discussions, a defining moment of Morrison’s leadership was the controversy over the Religious Discrimination Bill, which aimed to protect religious freedoms instead facing backlash over its potential to enable discrimination against LGBTQ+ individuals

Relationships between Ministers (and parties in a Coalition):

→ Collegial Cabinets reach decision in s a consensus style.

→ Cabinets plagued by rivalry & differences reach decision by majority or Prime Ministerial Authority (Captain Calls).

Rudd’s Cabinet 2007-2010: Was Dysfunctional due to Rudd’s over exercise of power.
Gillard 2010 – Contained Rudd as Foreign Minister (still holding animosity) but was more collegiate due to Gillard’s style as negotiator.
Abbott 2015 – Breaks in unity – coalition governments at the times core interests did not align (Liberals vs Nationals) – Captain’s calls by Abbott were not popular.
Morrison 2018-2022 – plagued by “text Message Leaks” & disunity, threats from the National Party to leave over climate policy with clear lack of support for Cabinet Solidarity in this space as well as frequent re-shuffles due to disgraced ministers leaving leading to promotion of Morrison’s allies & now the revelation that Morrison promoted to multiple ministerial positions.

Timing:

→ A New Government May struggle with decision making due to its lack of experience in government

→ Mature government may make decision easily but lack innovation

→ New Government may be subject to:

Slow decision-making due to a lack of familiarity with government processes.
Reliance on public servants for guidance, potentially reducing ministerial control.
Policy uncertainty or inconsistency, as ministers refine their approach.
E.g., When the Albanese government took office in 2022, it faced challenges in quickly addressing economic issues like rising inflation while also managing ambitious climate and social policies.

→ Mature Government may be subject to:

Complacency, with ministers relying on past strategies rather than exploring new solutions.
Resistance to change, as experienced ministers may dismiss innovative ideas.
Bureaucratic inertia, where the government focuses more on maintaining stability than pursuing bold reforms.
E.g., the Morrison government’s later years saw criticism for its lack of climate action and resistance to policy shifts, as it prioritized economic stability over innovation in areas like renewable energy and social welfare reform.

Nature/Type of the Decision:

→ Cabinet decisions may be deliberative with much time & discussion devoted to them, while others are crisis decisions.

→ Deliberative decisions require long-term planning, extensive consultation, & strategic foresight, involving significant debate within Cabinet & across government agencies.

E.g., Australia’s Response to the Israel-Gaza Conflict
Australian Cabinet has taken a measured & deliberative approach to its stance on the Israel-Gaza war, carefully balancing international diplomacy, domestic political considerations, & humanitarian concerns. Cabinet ministers have had to weigh foreign relations with the U.S. & allies, the stance of international organizations, & community responses, leading to a cautious & well-discussed foreign policy position.
E.g., U.S. Sanctions on Russia
The Biden administration’s approach to sanctions on Russia over the Ukraine invasion has been deliberative, with Cabinet officials & advisors extensively discussing the economic & diplomatic consequences before rolling out policies aimed at weakening Russia’s economy while minimizing harm to global markets.

→ Crisis-driven decisions require immediate action, often with less consultation & debate, as governments respond to urgent developments.

→ E.g., The Trump Administration & Russia-Ukraine Policy
The Trump administration’s inconsistent approach to Russia was often marked by crisis decision-making, where Cabinet decisions were influenced by sudden shifts in Trump’s personal stance. There were instances where Cabinet members, including national security officials, had to make reactive decisions in response to Trump’s unpredictable statements on NATO, sanctions, and Russian relations, leading to confusion and disjointed policymaking.

→ E.g., Israel-Gaza Ceasefire Discussions
Many governments, including Australia & the U.S., have had to respond rapidly to escalating violence in Gaza, making crisis decisions about humanitarian aid, military support, & diplomatic positioning. These decisions are often influenced by real-time intelligence, public pressure, & geopolitical risks, limiting the time for deep Cabinet discussions.

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Discuss the leadership spill of Malcolm Turnbull with reference to sources of power, &limitations to power (including the relationship between Prime Minister & Cabinet:

→ Prime Ministers are not directly elected & serve only so long as they lead the party with the majority in the House of Representatives.

→ If that party changes its leader, the country will have a new Prime Minister. In Australian politics, leadership spill (the leadership of a parliamentary party is vacant and open for contest).

→ At first Malcolm Turnbull was perceived as an effective Chair of Cabinet, with a strong cabinet & reasonable allocation on portfolios and party solidarity.

→ His targeting CO2 emissions was too much for Party Room members who do not believe in climate change.

→ They had fought under Mr Abbott’s leadership to repeal the Gillard Government’s Carbon Tax.

→ They wanted the NEG focus to purely on the price and reliability of energy. Moreover, they want a continuing role for coal as the energy source.

→ Turnbull’s socially liberal ideology, evidenced by his support for same-sex marriage & the emissions reduction component of the NEG, became more at odds with increasingly populist social conservatives like Tony Abbott, Eric Abetz & Peter Dutton.

→ Another factor was the personal animosity of former Prime Minister, Tony Abbott towards Mr Turnbull.

→ Their deteriorating relationship added strong emotional energy to the challenge. Ultimately, he retired.

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Roles & Powers of the Prime Minister, Cabinet & the Ministry:

Discuss the leadership spill of Tony Abbott with reference to sources of power, &limitations to power (including the relationship between Prime Minister & Cabinet:

→ Being the chairperson of the cabinet meetings is typically a source of power for a Prime Minister.

For Abbott, however his use of the power eventually led to his loss of power.

→ The Prime Minister has the power to determine the business and priorities of the government, as they control the Cabinet agenda, giving them the power to control what is discussed and what isn’t.

→ This means that the Prime Minister’s priorities are the government’s priorities.

→ The process that ministers must adhere to when submitting items to Cabinet limits the scope for Ministers to raise matters under their own discretion.

→ Abbott used this as a source of power when he first became Prime Minister by making “captain’s calls,” a use of power to make a final decision which often weren’t even discussed with the Cabinet.

E.g., (Captain’s Call) Rreinstatement of Knights and Dames in 2014 caught everybody by surprise, including the Cabinet, as the decision had not been discussed during any cabinet meetings.
E.g., (Captain’s Call) His attempt to delist 74,000 hectares of Tasmanian Wilderness World Heritage Area in 2014 was also against his own Cabinet’s advice, as was his very expensive paid parental leave scheme that was universally slammed as unaffordable.

→The constant use of the captain’s call meant his cabinet became angry & disillusioned with him, with most policies being developed solely by Abbott & Peta Credlin, his chief of staff, with next to no involvement with the Ministry.

→ This is where Abbott’s cabinet began to turn against him, leading to leaks coming from the Cabinet in 2015 relating to foreign affairs.

→ Showing that the limits to the powers of the Prime Minister, such as a “leaky” Cabinet, balance out the powerful position that the Prime Minister has in Australia’s political system.

→ Eventually, these leaks & lack of solidarity reflected poorly on the Liberal Party at a time when Abbott was receiving negative media attention as a result of several “faux pas” to the press.

→ Days before losing his Prime Ministership, he was captured on footage laughing out loud in response to a joke made by minister Peter Dutton about rising sea levels in Pacific Island nations.

→ Newspoll reported that Liberal was not the preferred party, 30 times in a row, which led to Malcolm Turnbull challenging Abbott for leadership of the party in September of 2015, succeeding with 54 votes to 44

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Key Sections of the Constitution:

Section 71:

→ Creates the High Court of Australia

→ Allows for the creation of a federal court hierarchy

→ Permits cross-vesting of judicial power

→ Vests the judicial power of the commonwealth in a “Federal Supreme Court” & says it should be called the “High Court of Australia”:

It specifies that the parliament shall have the power to create “other Federal Courts”

→ It allows Parliament to “invest” other courts with federal jurisdiction, granting state & territory court the power to adjudicate in cases involving Federal Law

It also gives exclusive power to the Parliament to legislate for new Federal Courts.

Section 72:

→ Guarantees Judicial independence by two mechanisms

→ The executive appoints, but only the Parliament may remove judges on grounds of ‘proven misconduct or incapacity’

→ Section 72 ensures the involvement of the other two branches of government in the appointment & removal of judges.

→ The power to remove a judge is deliberately separated from the ‘real’ executive as the government is often a party to cases.

Section 73:

→ Use the George Pell case as a case study

→ Grants & defines appellate jurisdiction

It grants powers to hear appeals on all civil & criminal matters arising from lower courts throughout all State & Territory courts

→ Section 73: grants the parliament power to determine which appeals the high court may hear (Special Leave to Appeal).

→The High Court will only grant Special Leave to Appeal if there appears to be:

A miscarriage of justice
A question of law (which creates new common law)
A conflict between courts.

Section 75 OG:

→ Refers to the power of a court to hear cases in the ‘court of first instance’.

The decision is law & may become precedent
The constitution grants the high court original jurisdiction in two sections:
Section 75: Grants the High Court original Jurisdiction & includes matters concerning treaties with other countries or international organisations or cases involving the states or the Commonwealth as parties
Section 75 (v): Grants the high court jurisdiction to adjudicate writs of Mandamus, prohibitions or injunctions.

Section 76 Additional Original:

→ Allows parliament to grant additional original jurisdictions to the High Court.

Giving the ability to create or establish new precedent

→ The Parliament may make laws conferring original jurisdiction to the high court in any matter:

Arising under this Constitution or involving its interpretation
Arising under any laws made by the Parliament (i.e., The Court of Disputed Returns)
Of Admiralty & maritime jurisdiction
Or Relating to the same subject-matter claimed under the laws of different States.
E.g., The Tasmanian Dam Case (1983):
Landmark decision involving the interpretation of the Constitution under Section 76(i). The High Court's original jurisdiction was invoked because the case dealt with matters arising under the Constitution & involving its interpretation of the scope of the Commonwealth’s external affairs power under Section 51(xxix) of the Constitution

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Power of the High Court of Australia:

Chapter 3 of the Constitution achieves several things:

1. Creates the federal judiciary vesting ‘judicial power’ of the commonwealth in a High Court.

2. Specifies exclusive power for the Parliament allowing it to create new federal courts.

3. Establishes the independence of the Judiciary protecting it from other arms of government.

4. Defines Judicial powers – called ‘jurisdictions’

5. Provides constitutional protection for one of the few ‘rights’ specified in the constitution – a right to trial by jury of indictable offences.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Judicial Authority:

What is meant by Judicial Authority:

→ The Judiciary is only arm of government that is not elected by the people therefore having no democratic mandate.

Opposite to the legislative arm where people directly vote for their representatives

→ Ability of the high court to do its job knowing it has no personal mandate

Despite this idea that people don’t vote for judges’, people trust the courts more than they trust politicians.

Sources of Judicial Authority:

→ The Constitution

→ The Judicial Act 1903

→ Common Law

→ Established norms & maxims

E.g., precedent, natural justice

→ Accountability through appeals

→ Tradition & heritage

E.g., right to silence, presumption of innocence

→ Authority of the court is always subject to that of the parliament.

→ Parliament may override the courts in almost all matters (except the High Court interpretation of the Constitution)

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

The Creation of a Federal Judiciary – Section 71:

Section 71:

→ Establishes the High Court & any other Federal Courts however State & Territory Courts (Supreme, District & Magistrates) do not come under Section 71.

i.e., “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia.

Summary of Section 71’s Power to Create “Other” Federal Courts & Give Examples of Federal Courts:

→ Creates the High Court of Australia

Allows for the Creation of Federal Court Hierarchy
Permits Cross-Vesting of Judicial Power

→ Vests Judicial Power of the Commonwealth in a “Federal Supreme Court” to be called the “High Court of Australia”

Specifies that the Parliament shall have the power to create “other Federal Courts & gives exclusive power to the Parliament to legislative for new Federal courts.

→ Allows Parliament to Invest other courts with federal Jurisdiction

Granting State & Territory court the power to adjudicate in cases involving Federal Law
Cross Vesting
Involves the transfer of cases between state or territory supreme courts of commonwealth courts

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Powers: Appointment & Removal – Judicial Independence – Section 72:

→ High Court Justices are Appointed by the Governor General

→ Justices cannot be removed except by the Governor General in Council on address from both Houses of Parliament on the grounds of proved misbehaviour or incapacity

→ Remuneration is fixed and cannot be diminished by parliament during their continuance in office.

→ Must retire when they reach the age of 70 years (1977 referendum)

→ In being selected to serve as a high court justice the process is transparent & merit based:

The Attorney General asks for advice from Chief Justices of all Australian Courts, the Law Council of Australia, the Australian Bar Association, State Attorney-Generals & all Justices of the High Court.
The Attorney General must consider nominations of suitable candidates & then seek Cabinet approval.
When approved the Attorney General recommends the nomination to the GG who then considers the appointment through the Federal Executive Council process.

Outlines the Means for Dismissal:

→ Judges can’t be removed except for by the GG on an address from both houses of parliament in the same session, houses must debate & argue for the removal on the ground of “proved misbehaviour or incapacity” however:

S72 is purposefully vague regarding to what constitutes ‘misbehaviour or incapacity’, making it extremely difficult to remove a judge this way.
The only allegation of misconduct against a Justice of the High Court was Justice Murphy Appointed in 1975

Significance of S72 Summary:

→ Section 72 Guarantees judicial independence by two mechanisms:

The executive appoints but only the parliament may remove judges on ground of ‘proven misconduct or incapacity’
The executive cannot reduce judges pay (renumeration)
Section 72 Ensures the involvement of the other two branches of government in the appointment & removal of judges.
The Power to remove a judge is deliberately separated from the ‘real’ executive because the government is often a party to cases.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Powers: Appellate Jurisdiction: Section 73

→ Appellate Jurisdiction Definition: Appellate jurisdiction refers to the power of a court to review the decision of lower courts.

→ What is meant by Special Leave to Appeal & Identify three Cases in which Special Leave to Appeal may be granted:

Special Appeal: The High Courts ability to control their case load giving the High Court the right of refusal to hear cases & decide which appeals they will hear.
Section 73 also grants the Parliament power to determine which appeals the High Court may hear – The High Court could refuse to hear a case if there appears to be:
A Miscarriage of Justice
A question of Law (which creates new common law)
e.g., the creation of a third sex: NSW Registrar Births, Deaths and Marriages v Norrie (2014)
e.g., redefining corruption: Independent Commission Against Corruption v Cunneen & ORS (2015)
e.g., a conflict between courts: Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991); conflict between the decisions of the Federal Court & the New South Wales Supreme Court over the validity of certain patents.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Powers: Original Jurisdiction: Section 75

Original Jurisdiction Definition: The High Court is the court of first instance i.e., not an appeal.

The High Court has original jurisdiction in all matters:

→ Arising under any treaty

→ Affecting consuls or other representatives of other countries;

→ In which the Commonwealth, or a person suing or being sued on behalf of the commonwealth is partly between states.

Section 75 Grants the High Court authority to hear cases where a writ of mandamus, prohibition, or injunction is sought against an officer of the Commonwealth.
E.g., NZYQ: an asylum seeker, challenged the lawfulness of a decision made by the Minister for Immigration under the Migration Act 1958. The High Court, exercising its original jurisdiction, determined that the decision was legally flawed and issued a writ of mandamus, compelling the Minister to properly consider the asylum claim.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Powers: Additional Original Jurisdiction: Section 76:

→ Additional Original Jurisdiction Definition: Parliament may make laws conferring original jurisdiction to the High Court in any matter:

Arising under this constitution or involving its interpretation
Arising under any laws made by the parliament
Of admiralty & maritime jurisdiction
Relating to the same subject matter claimed under the laws of different states.

→ This means parliament can pass laws giving the HC to hear matters:

E.g., The Judiciary Act 1902 where it conferred the HC power to interpret the Constitution.
E.g., The Commonwealth Electoral Act 1918 provides the HC with jurisdiction to act as the Court of Disputed Returns hearing challenges regarding the validity of federal elections.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Differentiate between Constitutional Decisions & Common Law Decisions:

Common Law Decisions: Fact, Issue, Decision, Significance

→ Mabo v Queensland (No 2) [1992] HCA 23

→ Nothern Territory of Australia v Mr A Griffiths and Lorraine Jones on behalf of the Ngaliwurru & Nungali Peoples [2019] HCA 7 (Timber Creek Case).

→ Pell v The Queen [2020] HCA 12

Constitutional Decisions: Fact, Issue, Decision, Significance

→ School Chaplains Case 2012

→ School Chaplains Case 2014

→ Plaintiff S156-2013 v Minister for Immigration and Border Protection [2014] HCA 22

→ NZYQ

→ Love and Thoms

What is meant by the term “Landmark Decision”:

→ A case that makes a significant impact in law or on power within a system of government

→ They may be constitutional or common law cases

→ Landmark decisions are the result of a landmark case that sets a precedent with a significant impact in law or on power within a system of government.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Common Law Decisions:

Common Law Definition: Case law developed by courts; courts are said to make law when they hand down a judgement for the first time.

→ According to the doctrine of precedent the ratio decidendi is binding on all inferior courts faced with similar fact situations.

Common Law Example 1: Mabo v Queensland (No 2) [1992] HCA 23:

→ Facts:

Dispute about a claim to the right of ownership over the Murray islands
In 1985 the Queensland government passed the Coast Island Declaratory Act stating native title did not exist on the island & the people were not entitled to any compensation for their loss of land.

→ The Issue:

Mabo was claiming the concept of terra nullius did not apply to the land

→ Decision:

In 1992 the High court found in favour of the Meriam People of the Murray Islands (6-1)
Their decision overturned the concept of Terra Nullius

→ Significance:

Great political & symbolic importance.
The high court at last clarified the common law on the effect of colonisation on Indigenous people is Australia.
The rejection of the doctrine of Terra Nullius established a new stating position for the development of the relationship between indigenous & non-indigenous Australians.

Common Law Example 3: Pell v The Queen [2020] HCA 12:

→ Facts:

Pell was convicted of 5 sexual offences alleged to have happened in the mid 1990s

→ The Issue:

Cardinal Pell sought leave to appeal from his conviction
As is common – the application for leave & the appeal itself were heard together
S73 – Appellate jurisdiction of the High Court:
In Cardinal Pell's legal team appealed the decision of the Victorian Court of Appeal, which had previously upheld his conviction for child sexual abuse. Section 73 allowed this appeal to be heard by the High Court because it provides the final avenue of appeal within the Australian judicial system.
Main ground: the guilty verdicts are ‘unreasonable & cannot be supported having regard to the evidence’
Second ground: Concerned the refusal by the trial judge to allow Cardinal Pell’s counsel to use a 19minute animation in his closing presentation to the jury.
Third ground:
Whether there was a fundamental irregularity in the trial process based on an argument that Cardinal Pell did not enter his plea of not guilty in the presence of the jury panel.
In a unanimous decision, the Court of Appeal refused leave to appeal in respect of the second & third grounds.
Cardinal Pell was successful in seeking leave to appeal in relation to the first ground however by majority the appeal was dismissed.

→ Decision:

The high court argued that if the evidence provided was credible, reliable & thorough he would not have been found guilty beyond a reasonable doubt.

→ Significance:

Re-emphasised that the standard of evidence was increased as a result of this case.
Re-emphasised that the credibility of evidence and witnesses must be of a high standard.

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The Roles and Powers of the High Court of Australia, Including ss 71, 72, 73, 75 & 76 with reference to at least one common law decision & at least on constitutional decision:

Constitutional Decisions:

The High court’s role of determining constitutional cases:

→ The written constitution is capable of more than one interpretation.

→ Disputes arise as to the meaning of the constitution & the legislative powers allocated to the commonwealth & the states & their financial powers.

→ Rights written & implied in the Constitution may be contested.

How the High Court Interprets the Constitution:

→ Defining Legislative & Financial Powers:

Whether a law is “ultra vires” (beyond one’s legal power)
Cases that change the balance of power (federalism)

e.g., WIlliams v Commonwealth [2014] HCA 23:

→ Issue:

Whether the federal government had acted ultra vires in funding the National School Chaplaincy Program directly to schools under S61 of the Constitution, which deals with the executive power of the Commonwealth.
After Williams 1 (2012) found the funding unconstitutional, the government tried to validate the program through financial legislation under the Financial Framework Legislation Amendment Act.

→ Decision:

High Court ruled that the funding mechanism under the FFLA Act was unconstitutional because it went beyond the scope of the Commonwealth's legislative powers.
The spending was unconstitutional because it was not supported by a specific power under Section 51 (xxiiiA) of the Constitution.

→ Significance:

Clarified limitations of Commonwealth financial powers & reinforced the principle of federalism, where powers of the states & the Commonwealth are divided & protected.
It confirmed that executive power (Section 61) alone cannot authorize spending without proper legislative backing.
This demonstrated how the High Court interprets the Constitution by ensuring that the Commonwealth cannot overreach its financial powers and must operate within the powers explicitly granted by the Constitution.

Interpretations Defining Executive Powers:

E.g., Williams v COmmonwealth [2012] HCA 23

→ Issue:

Whether the Commonwealth Government had the executive power under Section 61 of the Constitution to fund the National School Chaplaincy Program
The question was whether this executive power extended to making contracts and funding programs in areas traditionally managed by the states.

→ Decision:

The High Court ruled against the Commonwealth Government, finding that the funding arrangement was unconstitutional.
The court held that Section 61 of the Constitution only permits the executive to exercise power within the scope of Commonwealth legislative power.
The High Court made it clear that executive power is limited & cannot operate independently of Parliament's legislative authority, especially in areas outside the Commonwealth’s constitutional powers.

→ Significance:

The Williams 1 case was significant because it restricted the scope of executive power under Section 61.
It established that the executive cannot spend money on programs unless there is legislative backing through Parliament, reaffirming the principle of parliamentary accountability.
The case demonstrated how the High Court interprets the Constitution by defining and limiting executive power, emphasizing that the executive cannot act beyond its legal authority (ultra vires) without a valid constitutional or legislative basis.

→ Interpretations which discover implied rights within the Constitution e.g.,

Implied immunities & prohibitions
Implied rights to vote
Implied right to political communication

Constitutional Legal Issue – Love and Thoms v Commonwealth [2020] HCA 3:

Facts:

→ In 2020 the high court was called upon to interpret the meaning of ‘alien’ under Section 51 (xix) of the constitution.

→ When the Constitution was written ‘alien’ meant ‘non-citizen’

→ Under Australian federal law, any ‘alien’ who commits a crime in Australia can be deported.

→ Thoms & Love were both of aboriginal heritage but born outside of Australia & non-citizens.

Both had committed crimes & the federal government was in the process of deporting them when they launched a challenge to the high court.

Issue:

→ Case centred around whether by race, as Aboriginal Australians they could be considered ‘Aliens’ under Section 51 (xix).

Even if they satisfied current tests for ‘aliens’ i.e., born outside of Australia & a citizen of another state.

Decision:

→ In February 2020 the high court handed down several sperate judgements split 4:3.

→ The majority held that non-citizen Aboriginal Australians “were not within the reach of the ‘aliens’ power” in Section 51 (xix) of the constitution.

→ Therefore, non-citizen Aboriginal Australians could no t be considered aliens & therefore could not be removed from Australia under Section 198 of the Migration Act.

Significance:

→ Demonstrates the High Court updating the meaning of the constitution based on changing morals & societal understanding.

Role of the High Court in Finding Implied Rights:

Interpretations of the High Court discover implied rights within the Constitution e.g.,

→ Implied immunities & prohibitions

→ Implied rights to vote

→ Implied right to political communication

What is meant by Express rights with reference to the constitution:

Rights codified in written law, either constitutional or statutory.

What is meant by implied rights:

→ Implied rights are discovered in the constitution by the High Court when it interprets the constitution.

→ They can be controversial because they alter the constitution without democratic authority.

→ Implied constitutional rights empower the judiciary because only judges can discover & interpret implied rights, which can bind all other institutions within the political & legal system.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Definition of Opposition:

Definition of Opposition: Party or coalition with the second-largest number of seats in the House of Representatives. Its role by convention is to highlight alternatives to government policy & scrutinise government bills through the use of ministerial decisions & legislation.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Definition of Opposition Leader:

Definition of an Opposition Leader: The leader of the party or coalition with the second-largest number of seats in the House of Representatives. If the government were to lose office, the Leader of the Opposition would normally be expected to become Prime Minister.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Definition of the Shadow Ministry:

Definition of the Shadow Ministry: A group of opposition members who form an alternative cabinet to oppose & scrutinise government ministers.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Definition of the Private Members:

Definition of the Private Members: Refers to a member of parliament who is not a government minister.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Example of a Good Opposition Leader:

Example of a Good Opposition leader: Tony Abbot 2009-2013 Liberal Party of Australia

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Roles & Powers of the Opposition:

Provide a Credible Alternative to the Government: The Opposition seeks to defeat government or cause it’s resignation by persuading voters to accept alternative policies at a general election.

Contemporary Example Exemplifying the Opposition's Role of Providing a Credible Alternative to the Government - “Voice pamphlet mail out” February 2023:

→ In this case, the opposition, led by Peter Dutton, successfully pressured the government to reverse its decision to not produce an official information pamphlet for the Indigenous Voice to Parliament referendum.

Scrutinising Government Actions:

Question Time:

→ The time allocated each sitting day to private members asking questions to Ministers or the Prime Minister.

→ Questions may be on notice if they are written questions & require further research or clarification before an answer is provided at a later date.

→ They may also be without notice if they are simple, oral questions that can be answered immediately.

→ Contemporary Example of Question Time: Opposition Senator Jane Hume submits excessive numbers of written questions 2024

Jane Hume submitted nearly 13,000 formal written questions over two years, including more than 300 inquiries about the use of paper.
This extensive questioning was aimed at scrutinizing government operations and expenditures, demonstrating the opposition's commitment to accountability.

Censure Motions & Motions of No Confidence:

→ Censure motions are a trigger for parliamentary vote to discipline a minister

→ Motions of no Confidence are a trigger for a parliamentary vote to discipline the government, as a whole.

→ In accordance to Westminster Conventions of Responsible Government, if these motions are successful in the House of Representatives the minister or government is required to resign.

→ However these motions are never successful due to executive dominance in the HOR, although similar pressure may be applied to a government upon losing a legislative vote in the HOR.

→ Recent Example: Home Affairs Legislative Amendment Act 2019:

In 2019 the Morrison Government lost a legislative vote in the House of Representatives after having the Home Affairs Legislative Amendment Bill 2018 amend against its wishes in the senate.
The Opposition voted with Independents Julia Banks & Kerryn Phelps to pass the amended bill in the HOR.
While this applied pressure to the Morrison government no formal motion of no confidence was moved & the government did not resign.

Committees:

→ Panels of 6-10 members of parliament tasked with investigating issues, reviewing proposed legislation & scrutinising the work of the government e.g., Estimates Committees.

→ Ministers cannot serve on committees as this would violate the separation of powers while shadow ministers can.

→ Opposition Members serve on all committee, their views are represented in committee reports acting as an opportunity to scrutinise government actions & spending.

→ Recent Example: Senate Select Committee on Covid-19

In 2020 the Senate established the Select Senate Committee on Covid-19.
Due to the lack of executive dominance in the Senate, the committee was chaired by Labor Senator Katy Gallagher providing a great forum for scrutiny.
It questioned the “unnecessary exclusion” of one-million Australian workers form JobKeeper Payments.
It also questioned a potential conflict of interest in the COVID-19 Coordination Commission as the Chair was a deputy chair of a gas company & the Commission recommended a ‘gas-led economic recovery’.

Debates & Matters of Public Importance:

→ A Matter of Public Importance (MPI) is a matter submitted to a House of Parliament for discussion after Question Time.

→ In practice, the vast majority of MPIs are proposed by the Opposition, who use them as opportunities to criticise the government.

→ However these matters do not initiate a parliamentary vote.

→ Contemporary Example: Anthony Albanese MPI – February 2022

The leader of the opposition proposed the following MPI be discussed by the HOR, ‘Indeed this is a government that never does its job because its too riven by disunity, dysfunction & dishonesty…rendering it incapable of moving the country forward.’
By convention the opposition is entitled to the opportunity to express its views on all issues debated, claiming equal speaking time in debates & the alternating call of the speaker to speak or ask questions subject to gags & guillotines.

Calling for Quorum:

→ The Quorum is the minimum number of members required for a committee (or parliamentary chamber) to conduct business legally.

→ If a quorum is not met, the committee cannot proceed with discussions, vote on issues or finalise reports.

→ Recent Example: The Two Quorum Calls of 26 November 2019:

In the house of reps 31 members must be there at any given time
In the Senate 19 senators must be there at any given time
Acting as witnesses of parliamentary business.
Falls under standing orders relating to the rules & conduct of ministers.

Refusing Pairs:

→ Occurs when members of parliament from oppositng sides decile to pair their votes.

→ In parliamentary practice, pairing is an informal arrangement where an MP from one side agrees to abstain from voting if an MP from the other side is absent.

A person may be absent due to illness or official duties.

→ This ensures the balance of votes remains unchanged.

→ The refusal of pairs is a parliamentary tactic often used by the opposition.

→ Recent Example: 2016 Refusal of pairs:

The Federal Opposition rejected the Turnball Government’s request for pairing arrangements in the new Parliament.
Christopher Pyne criticised Labor for this refusal, suggesting it was due to ignorance or a malicious approach.

Strengths of the Opposition:

→ Opposition has an official recognised function, established by convention of opposing the government.

→ The opposition are entitled to time in debates (e.g., Budget Replies, Matters of Public Importance) & representation on committees reflecting the composition of parliament.

→ The Opposition can work with minor parties & independents in the Senate to amend/block legislation forcing the cabinet to reassess a particular policy:

→ Contemporary Example: Religious Discrimination Bill Feb 2022

The bill did not get to a second reading debate in the Senate.

Weaknesses of the Opposition:

→ The opposition do not require a majority in the House of Representatives, therefore censure motions & motions of no confidence against the government will fail.

→ The government can use its control of Standing Orders to set the parliamentary agenda, bringing debate to an end (gag) or set time limits on it (guillotine).

→ The Opposition lacks access to key resources (e.g., Australian Public Service, National Cabinet).

→ Staff assistance & resources for the opposition are provided at government expense, historically they receive 21% of government staffing levels.

Opportunities:

→ A hung parliament may provide the Opposition with the opportunity to block or amend government bills in the HOR.

→ Subsequent pressure may contribute to a motion of no confidence.

→ A well organised Opposition may benefit from extra-parliamentary resources (e.g., finances, information).

→ Recent Example: Labour Secures Changes to the Coronavirus Economic Response Package Bill 2020:

Labor maintains close links with the Australian Council of Trade Unitions securing changes to the Coronavirus Economic Response Package Bill through negotiations with the government, including restrictions on changes to working hours & conditions under the JobKeeper program.

Threats:

→ The Speaker may be partisan & act against Opposition interests.

→ Recent Example: Bronwyn Bishop (2013-2015):

Bishop ejected 400MPs under Standing order 94A (disorderly conduct), of which 393 were Opposition members.

→ Question Time may be ineffective for scrutinising the government due to the limited requirements for answers (i.e., questions without notice) & Dorothy Dixers (i.e., friendly questions asked by government members).

→ Recent Example: Morrison Government Suspends Parliament 2020:

The Morrison Government suspended parliament due to the COVID-19 pandemic forcing it to operate with only a quorum (i.e., minimum number) of MPs.
This reduced the Oppositions ability to scrutinise bills & forcing them to offer bipartisan support for government spending.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Being a Viable Alternative Government:

→ The Opposition works to prove an alternative government actions or policies.

→ In this capacity the opposition scrutinises the government & seeks to hold them accountable for their decisions especially through Question time.

Contemporary Example of Question Time: Opposition Senator Jane Hume submits excessive numbers of written questions 2024
Jane Hume submitted nearly 13,000 formal written questions over two years, including more than 300 inquiries about the use of paper.
This extensive questioning was aimed at scrutinizing government operations and expenditures, demonstrating the opposition's commitment to accountability.

→ The opposition is also called alternative government, as such they must be ready to form government if they are voted in as a government following a federal election e.g., shadow ministry, clear policies – climate change.

Three Scenarios Where the Opposition must be ready to form government:

→ If government may fall during a parliamentary term after losing the HOR’s confidence:

The opposition is then able to command the confidence of the House & then form Government
Example: Fall of the Fadden Government, 1941:

→ A weak government loses the confidence of the House of Representatives & no other Party can form Government:

The Governor General uses the reserve powers to dissolve the parliament & initiate an election which may be won by the opposition.
Example: Dismissal of the Whitlam Labor Government 1975
11 November 1975: Governor General Sir John Kerr used his reserve powers to dismiss the Whitlam Labor Government - this sparked constitutional crisis & is regarded as one of the most significant turning points in Australia politics.

→ The Opposition Party Contests Ordinary General Elections against the Government Party:

The most common way Oppositions become government.
Therefore before & during an election the Opposition must be a viable government if electors are to have a democratic choice.
Contemporary Example: 2022 Australian Federal Election
The Liberal-National Coalition led by Scott Morrison was in power, while the Australian Labor Party led by Anthony Albanese contested the election as the Opposition.
Key issues throughout the campaign such as cost of living pressures & the government’s handling of the COVID-19 pandemic, wages & job security as well as aged care & healthcare funding were heavily debated.
Ultimately the ALP secured a majority government with 77 seats in the HOR ending nearly a decade of Coalition government.

Factors Affecting Success of an Opposition:

→ Impartiality of the Speaker:

The Speaker is a member of the lower house & is elected by MPs under Standing Order 11.
The HOR cannot function without a Speaker who acts as the presiding officer upholding Standing Orders & ensures proper conduct of the MPs.
They must be impartial & neutral; their role is equivalent to the President’s role in the upper house who is elected by Senators.
Example: Bronwyn Bishop – Liberal MP 2013-2015
A controversial Speaker, often accused of bias in favour of the government. Her tenure was characterized by a high number of opposition MPs being ejected from the chamber under Standing Order 94(a). She faced criticism for her partisan approach.
Her term ended following a travel expenses scandal, which led to her resignation in 2015.

→ Resources:

A lack of resources limits the effectiveness of an Opposition.
The governing party command all resources of a government including access to expert advice knowledge of the workings of government & the administrative power of the Australian Public Service – the Opposition lacks all of these.
The PM decides resources allocated to the Opposition
e.g., the Oppositions get approximately 21% of the government’s staffing levels.
Without access to adequate information & other resources it can be difficult for an Opposition to hold a government to account.
A lack of resources increases the likelihood an Opposition will make errors or appear incompetent & unfit to govern.
Labor Oppositions benefit from extra parliamentary organisation of the ALP – its close relations with the trade union movement provides it with staffing & financial resources.
The Australian Council of Trade Unions ran its change of rules Campaign in parallel with the ALPs election campaign during the 2019 general election.
Liberal Oppositions lack financial resources & the benefits that come from a well-organised & funded extra-parliamentary party relying heavily on scrutinising the government & their development of policies.

→ Executive Dominance:

Opposition limitations can be blamed on government dominance in the House of Representatives & sources of information.
Majority governments easily win votes on motions in the HOR, can elect Speakers of their choice & control the resources of the government.
The Abbot Opposition to the First Rudd Government (2007-2010) was effective, bringing about Kevin Rudd’s fall & replacement by his deputy, Julia Gillard.
The Opposition aggressively attacked the Rudd Government’s handling of the Global Financial Crisis stimulus spending, the failed home insulation scheme, & the proposed emissions trading scheme (ETS).
Combined with internal Labor tensions and declining public support, this pressure contributed to Rudd’s downfall and his replacement by Julia Gillard in June 2010.
Minority governments have less control over the parliament than majority governments creating opportunities for effective Opposition.
Abbot Opposition to the Minority Gillard/Rudd Government (2010-2013) was the most effective Opposition in recent history.
The Opposition relentlessly challenged the minority Gillard/Rudd government, effectively using parliamentary tactics, media campaigns, & policy attacks to undermine Labor’s stability.
Abbott’s strong opposition on issues like the carbon tax & asylum seeker policies, combined with leadership tensions within Labor, contributed to significant public distrust ultimately leading to the Coalition’s landslide victory in the 2013 federal election.

How the Opposition Overcomes Limitations:

→ Third Party Research:

The Opposition can overcome some of the limitations brought about by the lack of sources of information through using third parties such as accounting firms, think tanks & academic research centres to provide analysis of government policy.
Example: The Chifley Research Centre (CRC):
The ALP’s official ‘Think Tank’.
A think tank is an organisation that provides research, reports & advice on particular issues.
The CRC collaborates with universities & pressure groups to develop public policy & commissions research into public issues providing advice to the Balor Caucus.
The resources provided by the CRC help compensate for the lack of resources an ALP opposition might otherwise suffer.

→ Reforms: P95 of KING

Reforms improve government accountability therefore support the work of the opposition.
Reforms include the provision of additional staffing & other resources to Oppositions, although they often stall.
Although it’s not in their interest only the government can implement reforms that would benefit the opposition.
Example: The Charter of Budget Honesty Act 1998 was a successful reform of the Howard Government.
Requiring the treasurer must report to parliament three times a year; when introducing the budget to the HOR, with a mid-year Economic and Fiscal Outlook and within three moths of the end of the June 30 financial year.
Each report by the treasurer is an opportunity for the opposition to scrutinise government spending & hold it accountable.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Political Mandates:

Mandate Definition:

→ A ‘political mandate’ is a claim for authority to exercise political & legal power within a state or nation.

→ It is the legitimate right to control the institutions of state/nation power – especially the legislative power & the executive power – the right to make & carry out laws.

→ In modern liberal democracies those who win elections claim a political mandate, under their authority to use power granted by the people during an election.

→ Example of a Political Mandate: Labour promised they would have a voice referendum in the 2022 election which they delivered in during their term in 2023.

Types of Mandates:

→ Majoritarian Mandate: The authority claimed by a government that has secured a majority in an election, allowing it to implement policies based on the perceived will of the majority.

Contemporary Example: 2022 Federal Election: Australian Labor Party led by Albanese secured 77 seats in the House of Representatives, giving Labor the numbers to govern outright, allowing them to implement their policy agenda without needing to negotiate with minor parties or independents.

→ Specific Mandate: The authority claimed by a government to implement particular policies or promises explicitly presented during the election campaign.

Contemporary Example: 2022 Federal Election: Albanese’s Australian Labor Party campaigned on a specific mandate to implement the National Reconstruction Fund. Government moved forward with this policy after winning the election, securing legislative approval in 2023 to fulfill its commitment to economic diversification & job creation.

→ General Mandate: The broad authority granted to a government to govern according to its overall ideological principles & policy agenda, even on issues not specifically addressed during the election campaign.

Contemporary Example: 2022 Federal Election: Albanese’s Australian Labor Party (ALP) formed government with a broad commitment to addressing cost-of-living pressures, climate action, & strengthening Medicare.
After winning the election, the government pursued a range of policies, including increasing minimum wage, expanding renewable energy investments, & bolstering healthcare funding, reflecting their general mandate for progressive reform.

→ Competing Mandate: This arises when different parties or branches of government claim authority based on their respective interpretations of the electorate’s will, leading to potential conflicts in policy implementation.

Contemporary Example: 2023 Federal Budget: The Labor government & Liberal-National opposition presented contrasting fiscal approaches based on their respective electoral mandates.
The ALP’s policies reflected their commitment to progressive economic management and social support.
The Liberal-National Coalition proposed an alternative approach focused on reducing government expenditure, tax cuts, & providing business incentives to stimulate economic growth.
Illustrating a fiscal competing mandate reflecting the divided priorities of the electorate.

→ Balance of Power Mandate: When minor parties or independents in the Senate hold enough seats to determine whether government legislation passes or fails, arising when government does not have a majority in the Senate & must negotiate with crossbench senators to secure policy support.

Contemporary Example: 2022 government composition: The Greens &independent senators held the balance of power in the Senate, requiring the Albanese government to negotiate with them to pass legislation.
As a result in 2023, government needed the support of the Greens to pass the Housing Australia Future Fund, leading to concessions such as increased funding for social and affordable housing to secure their votes.

Outline the Roles of S7, 24 & 28 &

→ Section 7 (Senate): “the Senate shall be composed of Senators for each state, directly chosen by the people of the state”

This means electors in states directly elect the Senate giving it a democratic mandate to wield power over legislation.

→ Section 24 (HOR): “directly chosen by the people of the commonwealth”

Reinforces the majoritarian mandate by ensuring the House is directly elected based on population, a government that wins a majority in the House claims a mandate to implement its policies

→ Section 28 (House Duration): “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.”

Mandates regular elections, reinforcing competing mandates, governments claim legitimacy from the House majority while the senate (with its longer terms) may claim a separate mandate to review legislation.
Majoritarian mandates: Since the HOR is directly elected the government claims a mandate to govern & implement policies when it wins a majority, Section 28 ensures this mandate is refreshed or challenged through regular elections.
Competing mandates: A government may claim a popular mandate from its house majority, but the senate (not dissolved in the house) may claim a separate mandate to scrutinise or block legislation leading towards tensions, particularly if the Senate has a different political composition - may argue that they represent the broader will of the people, leading to conflicts with the government in passing laws.
Election Timing & Mandates: If a government calls an early election (via dissolution under section 28), it may argue that it is seeking a new mandate from the people, conversely the opposition may claim the government has lost its mandate & should be removed.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Balance of Power Mandate:

Definition: The ability of Independent & Minor Party Senators holding the balance of power in the Senate to vote either in favour of or against government legislation – arises form the crossbench’s ability to review, block, amend (& request amendments – money bills) to legislation.

Justifications:

Section 7: “the Senate shall be composed of Senators for each State, directly chosen by the people of the Senate”

→ This means electors in states directly elect the Senate, giving it a democratic mandate to wield power over legislation.

→ Since the Senate is not dissolved when the house is it can claim a continuous mandate to review and block legislation, even if the government holds a House majority.

→ In a hung parliament minor parties & independents hold the balance of power, justifying their role in influencing, negotiating, or blocking government bills.

→ The Senate is not controlled by the executive – it serves as a legislative check, preventing the government from unilaterally passing laws without scrutiny.

→ The legitimate democratic mandate of Balance of Power allow is to shape legislation.

Dual Voters (strategic voters) cast their votes as follows:

→ Deliberately vote for different parties in the House of Representatives (HOR) & the Senate to influence both governance & accountability.

→ They vote for a different party or independent senator in the Senate – a party or independent they wish to hold the government accountable via the Senate’s ‘house of review’ function outlined in Section 53 of the Constitution.

→ Results in diverse Senate composition, where minor parties & independents hold the balance of power, forcing the government to negotiate & justify its legislative agenda.

→ Reinforces Australia’s bicameral system by allowing voters to influence both governance and legislative review.

Criticisms:

The Senate is designed by & entrenched in Section 7 of the Constitution as the states house.

→ Section 7 establishes the Senate as a states’ house, meaning it was intended to protect state interests, not serve as a house of review for government legislation.

→ The balance of power mandate allows minor parties & independents (often from smaller states) to block or force amendments to government legislation, even if they received only a small percentage of the national vote.

→ A hostile Senate, especially when controlled by opposition parties or crossbenchers, can obstruct government policy, leading to political instability and inefficiency.

→ Government is elected in the HOR, while Senates have a different composition meaning they can block legislation, preventing the elected government from fully implementing policies.

→ Balance of power in the Senate does not always reflect the will of the majority but instead grants disproportionate influence to smaller states, minor parties, & independents.

Equal State Representation creates malapportionment resulting in:

→ Each state elects 12 Senators & territories are appointed two regardless of population meaning smaller states have the same Senate influence as larger states despite different voter numbers.

→ While government is elected by the majority of national voters, they can have legislation blocked by a Senate dominated by small-state representatives or minor parties leading to the distortion of the Democratic Mandate.

→ Although the Senate was designed to represent state interests, in practice, Senators vote along party lines, acting as party representatives rather than state delegates.

→ Proportional voting in the Senate allows minor parties & independents (often from smaller states) to control the balance of power, giving them undue leverage over national policy decisions.

→ Malapportionment leads to unequal voter influence, legislative gridlock, and a Senate that functions as a partisan body rather than a true states' house, undermining the balance of power mandate.

Examples:

MEDEVAC:

→ 2019 Election saw the Liberal-National coalition won 77/151 seats in the lower house & formed government, gaining back their majority.

→ One of their election promises was to ‘repeal medevac’ & they did.

→ They introduced a bill to repeal Medevac into the HOR which passed due to government majority.

→ In the Senate Labor & the Greens opposed the bill, & the final vote fall to Jaqui Lambie who sided with the government allowing Medevac to be repealed

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

Majoritarian Mandate:

Justifications:

Expression of the People’s Will

→ Elections directly express the public's choice, granting legitimacy to the government formed in the Lower House.

Government Endorsement

→ Since the government is chosen by the majority in the Lower House, its programs & policies are backed by a clear electoral mandate.

Accountability Mechanism

→ The electoral process holds the government accountable to deliver on its promises, ensuring that policy decisions reflect the voters’ interests.

Right to Introduce Policies

→ The government can justify introducing policies based on its majority mandate, even when facing challenges from the Opposition or Senate members.

Balancing Opposition Input

→ While minor parties, independents, and the Opposition may oppose or scrutinise post-election legislation, the government's majority mandate supports its policy agenda.

→ Government is elected in the Lower House, deriving democratic mandate from the people's vote, which endorses its policies & holds it accountable for delivering on its promises – even as opposition & independent voices in the Senate provide essential checks on its power.

Criticisms:

→ If government forms without securing a majority of seats in the HOR, or it gains power with a minority of the popular vote due to preferential voting, its claim to a mandate is weakened.

Raising questions about whether the government truly represents the will of the majority or if its authority is only a product of the electoral system.

→ When a government implements policies not explicitly endorsed during the election campaign, or contradicts previous commitments, it can be accused of lacking a mandate for those actions.

Examples:

→ In March 2023, Peter Dutton criticized Labor for altering superannuation policy, suggesting voters had been misled, highlighting how deviations from campaign promises can diminish public trust & challenge the legitimacy of a government’s mandate.

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Roles & Powers of the Opposition & the Shadow Ministry at the Commonwealth Level:

What is a Hung Parliament:

Definition: If neither side in the House of Representatives has a clear majority a minority government may form with the support on minor parties & independent MPs who must agree to vote with it to ensure the budget supply bills can be passed & to support the minority government in a vote of no-confidence.

→ Example: After the 2010 election the Gillard government received the support of Greens MP Adam Bandt & three independents to form a minority government – the first hung parliament since 1940.

Does a Minority Government mean Parliament will grind to a Halt:

→ A hung parliament means a minority government will need to negotiate with independents or minor parties to pass its legislation through the HOR, this does not mean it will be prevented from governing.

→ Example: The Gillard Minority Government passed more legislation in its first 700days than the Abbott government did in the same period.

Why the Gillard Minority Government & a hung Senate was able to Exercise a Mandate:

→ Labor (72 seats) formed a minority government with the support of Greens (1 seat) & Independents (4 seats) - coalition held 72 seats.

→ Senate: No party held a majority – Labor (31) & the Greens (9) controlled 40 of the 76 seats, giving them a working majority.

Independents & the Greens agreed to support Labor in key votes, allowing Gillard to pass legislation.

→ Senate Cooperation:

With Greens control of the balance of power, Labor could pass laws through the Senate.

→ Legislative Success:

Through negotiation, Gillard implemented major policies like the carbon price & National Disability Insurance Scheme (NDIS), reinforcing her ability to exercise a mandate despite minority status.

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Roles & Powers of the Governor-General, Including Sections 61, 62, 63, 64, 28, 57, 72 & the ‘1975 crisis’:

Constitutional Provisions:

Section 2: Establishes the “Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth” with powers exercisable as granted by the Constitution.

Section 61: “executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General” effectively making the GG the head of the executive government.

Section 62: Establishes “There shall be a Federal Executive Council to advise the Governor-General” consisting of ministers chosen by the GG.

Section 63: When the Governor-General exercises power they do “acting with the advice of the Federal Executive Council, unless otherwise expressed."

Section 64: Grants the Governor-General the power to “appoint officers to administer such departments of State”, but they must be members of Parliament within three months of appointment – “no Minister shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives".

Section 68: States that the Governor-General is the “command in chief of the naval and military forces of the Commonwealth”.

Section 28: Requires the House of Representatives be elected for a maximum term of three years, “and no longer, but may be sooner dissolved by the Governor-General.".

Section 57: Outlines the procedure for resolving deadlocks between the House of Representatives and the Senate, “If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it” including the possibility of a double dissolution “the Governor-General may dissolve both Houses Simultaneously” & a joint sitting.

Section 72: Governs the appointment, tenure and removal of Justices of the High Court & other federal courts, stating that they are appointed by the Governor-General & “shall not be removed except by the Governor-General, on an address from both Houses of the Parliament” in Council “on the ground of proved misbehaviour or incapacity."

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Roles & Powers of the Governor-General, Including Sections 61, 62, 63, 64, 28, 57, 72 & the ‘1975 crisis’:

Process for appointing the GG

→ Prime Minister selects a candidate for the role, often in consultation with senior advisors and government officials.

Non-Partisan Selection: The individual is not chosen through an election but rather based on their distinguished service, which reduces political bias.

→ The Prime Minister formally advises the reigning monarch, the monarch follows this advice and appoints the Governor-General.

Advisory Role of the Monarch: Since the reigning monarch acts on the Prime Minister’s advice, the appointment remains within Australia’s political system but separate from party politics.

→ The chosen individual typically has an extensive and respected career in fields such as the military, judiciary, public service, or other areas of national significance.

Expected Impartiality: The Governor-General's role is largely ceremonial & constitutional, meaning they must act according to the Constitution & established conventions rather than personal or political preference.

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Roles & Powers of the Governor-General, Including Sections 61, 62, 63, 64, 28, 57, 72 & the ‘1975 crisis’:

Powers of the Governor General:

Legislative Powers: Chapter 1 of the constitution confers significant legislative power on the Governor-General, exercising legislative powers on the advice of the EXCO. Legislative Powers include:

→ Proclamation of a parliamentary session within thirty days after an election (Section 5).

Governor-General holds legislative power proclaiming the beginning of a parliamentary session “no later than thirty days after the first meeting of the House of Representatives.” (after a federal election).

→ Proroguing or suspending parliament between sessions and dissolving the House of Representatives after an election (Section 5).

Governor-General has the legislative power to prorogue or suspend Parliament between sessions, effectively pausing its operations until the next session begins.
The Governor-General can dissolve the House of Representatives after an election, leading to the end of its current term and the initiation of a new election.
This ensures the functioning and continuity of the parliamentary system.

→ Issuing writs for a general election (Section 32).

The Governor General holds the Legislative power to “issue writs for a general election”.
This power ensures the election of members to the HOR initiating the electoral process enduing the HOR is regularly replenished with relevant elected representatives.

→ Dissolving both houses in the event of a double dissolution election and convening a joint sitting of the parliament in particular circumstances (Section 57).

Recent Example: Peter Cosgrove 2016:
Exercised legislative power under Section 5 of the constitution to prorogue parliament & then recall it on the advice of Malcom Turnball.
The recall enabled the Senate to debate two previously rejected pieces of legislation regarding the re-establishment of the Australian Building & Construction Commission.
The failure of parliament to pass the bill despite the recall prompted Turnball to request the GG use his power under Section 57 to call a double dissolution election.

Executive Powers: Chapter 2 of the Constitution outlines the executive powers of the Governor General; Section 61 of the constitution outlines that “executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General”. Executive roles of the Governor General include:

→ Selecting & Appointing an EXCO (Section 62):

Council advises the Governor-General on the governance of the Commonwealth
Governor-General appoints ministers, who must be members of Parliament, to the EXCO, effectively forming the executive arm of government.
Ensuring executive power is exercised on the advice of the Council, aligning with the principle of responsible government.

→ Acting on the advice of the Exco (Section 63):

The Governor-General exercises executive power “acting with the advice of the Federal Executive Council, unless otherwise expressed."
While the Governor-General holds formal authority, decisions are made based on the recommendations of EXCO, ensuring executive actions align with the advice of elected ministers.
Reinforces the principle of responsible government, where the Governor-General’s actions reflect the will of the elected government.

→ Appointing & Dismissing ‘Ministers of State’ (Section 64):

The Governor-General holds executive power to “appoint officers to administer such departments of State”
However, ministers must become members of Parliament within three months of their appointment.
The Governor-General “may remove any Minister of State from office”, ensuring the executive is accountable to Parliament.

→ Appointing Senior Government Officials (Section 67):

Involves the administration of the executive branch of government.
Under Section 67 of the Constitution, the Governor-General has the authority to appoint and remove senior public servants, such as departmental secretaries and agency heads.
This power ensures the proper functioning of the public service and the implementation of government policy, making it a core element of the executive responsibilities of the Governor-General.

Express Powers: Powers codified in the constitution, the governor general possesses express executive powers, the Commonwealth Parliament possesses express legislative & financial powers.

→ Example: Dissolving Parliament (Section 28 & 32), Commander of the Armed Forces (S68) & appointing HC Judges (S72).

Reserve Powers: Powers of the governor general codified in the Constitution & Exercisable without advice in emergencies. Section 28 & section 64 are examples. Sir John Kerr’s use of the power under Section 64 of the constitution is to dismiss Prime Minister Whitlam in 1975 is an example.

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Roles & Powers of the Governor-General, Including Sections 61, 62, 63, 64, 28, 57, 72 & the ‘1975 crisis’:

Roles of the Governor-General:

Ceremonial Roles:

→ As Commander in Chief of the Armed Forces the GG represents Australia on occasions such as ANZAC Day & Remembrance Day presenting colours & other insignia.

→ Receiving & entertaining visiting heads of state, heads of government & other prominent visitors to Australia.

→ Opening new sessions of the Commonwealth Parliament

→ Receiving the credentials of foreign diplomats and High Commissioners appointed to represent their countries in Australia.

→ Conducting investitures at which people receive awards under the Australian Honours system.

Non-Ceremonial Roles: Sir Ninian Stephen (GG 1977-1983) stated that the role of the Governor-General was to ‘represent Australia itself’ requiring GG’s to involve themselves in activities such as:

→ Travelling widely in order to meet with people from all different walks of life.

→ Accepting patronage of various charitable, cultural & other organisations.

→ Attending services & functions.

→ Speaking at & opening national & international conferences.

→ Presenting awards at major public functions.

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Roles & Powers of the Governor-General, Including Sections 61, 62, 63, 64, 28, 57, 72 & the ‘1975 crisis’:

The Constitutional Crisis 1975:

Describe the Key Events Leading up to the Dismissal:

→ Three significant events at the time did not have long term implications but were important to the event at the time.

Economic Condition – Stagflation: Weak economy with rising interest rates & unemployment or no job & your house loans cost more).
Loans Affair & Ministerial Sackings: Creating internal crisis in government with policy failures.
Opposition: Snedden & then Fraser using Senate to block supply (Bastards).

Governor General:

→ Sir John Kerr (GG) took an active interest in the crisis, talking to both Fraser & Whitlam at various points during the period following October 15.

→ Early November Fraser offered to pass supply, provided an election was called by the middle o f 1976.

→ The next day Kerr asked Whitlam if he could consult the Chief Justice of the High Court of Australia, Sir Garfield Barwick, about the Supply crisis. Whitlam said no.

→ Kerr spoke to Fraser a number of times over the next few weeks (Whitlam was aware).

→ Kerr decided he would act to ensure the crisis is resolved for a pre-Christmas election determining that the 11^th of November 1975 was the last practical day.

→ Sought advice from the CJ High Court Barwick on Constitutional duties & rights.

→ Sir John Kerr’s action emphatically broke with seventy-five years of Australian political convention, although he was the Crown’s representative in Australia, he took this action without consulting the Queen.

List the Options available to Kerr in 1975:

During the 1975 Australian Constitutional Crisis, Governor-General Sir John Kerr faced several options in how to handle the political deadlock between Prime Minister Gough Whitlam's Labor government and the opposition-controlled Senate;

Wait for a Political Resolution

Description: Kerr could have waited for the deadlock to resolve itself through negotiation between Whitlam and the Opposition.
Pros: Respected democratic processes; avoided drastic constitutional intervention.
Cons: No guarantee the Senate would pass supply; risked a government shutdown.

Encourage Whitlam to Call a Double Dissolution

Description: Kerr could have urged Whitlam to request a double dissolution of both Houses of Parliament, as allowed under Section 57 of the Constitution.
Pros: Put the issue to the people; respected Whitlam’s authority as PM.
Cons: Whitlam was reluctant to take this route; supply bills might not have passed in time.

Accept Whitlam's Advice to Call a Half-Senate Election

Description: Whitlam sought a half-Senate election to shift the balance of power.
Pros: Less extreme than a double dissolution; democratic solution.
Cons: Would not immediately resolve the supply issue; unlikely to change Senate numbers quickly.

Dismiss Prime Minister Gough Whitlam

Description: This is the option Kerr ultimately chose—he dismissed Whitlam and appointed Opposition Leader Malcolm Fraser as caretaker Prime Minister.
Pros: Immediate resolution of the supply crisis; upheld constitutional duty to ensure government functionality.
Cons: Controversial and seen as undemocratic by many; triggered national and political outrage.

Resign as Governor-General

Description: If Kerr felt unable to act impartially or constitutionally, he could have stepped down.
Pros: Avoided personal involvement in the crisis.
Cons: Seen as an abdication of duty; would have left the country without a head of state during a crisis.

Outline the Powers used by Kerr in the 1975 Dismissal:

Governor-General Sir John Kerr exercised several constitutional powers – primarily executive reserve powers – without the advice of the Prime Minister or Executive Council.

Section 64 – Appointment and Dismissal of Ministers of State (Executive Power)

Key Power Used by Kerr
This section states that “Ministers of State shall be appointed by the Governor-General and shall hold office during his pleasure.”
Kerr’s Action:
Kerr used this reserve power to dismiss Prime Minister Whitlam from office on 11 November 1975.
He did so without Whitlam’s advice, on the grounds that Whitlam could not secure supply (i.e. pass a budget through the Senate).
Significance:
This was a rare and controversial use of reserve power—while the power is codified, it is typically not used independently except in a constitutional crisis.

Section 7 and 24 – Appointment of a Prime Minister

After Dismissal of Whitlam: Kerr appointed Opposition Leader Malcolm Fraser as caretaker Prime Minister on the condition that Fraser secure passage of supply bills and then advise a general election.
Why It Matters: Although not explicitly listed under one section, the Governor-General has the convention-based authority to appoint a Prime Minister who commands the confidence of the House of Representatives.

Section 5 & 32 – Dissolution of Parliament and Issuing Election Writs (Legislative Powers)

Following the Appointment of Fraser, Kerr, on Fraser’s advice, used his legislative powers to: Dissolve the House of Representatives & Issue writs for a general election
Significance: These actions allowed the Australian public to vote in a double dissolution election, ending the parliamentary deadlock.

Reserve Powers (Unwritten Conventions)

Kerr’s actions were grounded in the doctrine of reserve powers, which allow the Governor-General to act without or against ministerial advice in exceptional circumstances—such as when: A government cannot secure supply, The Prime Minister refuses to resign or call an election
Most Controversial Use: The dismissal of an elected Prime Minister without a no-confidence motion from Parliament.

List the Issues Raised by the 1975 Constitutional Crisis:

The Extent and Legitimacy of the Governor-General’s Reserve Powers

Can the Governor-General legally dismiss a sitting Prime Minister who still holds the confidence of the House of Representatives?
Are reserve powers intended only for extreme emergencies?
Should they be more clearly defined or limited?

The Role of Constitutional Conventions vs. Codified Law

Should unwritten conventions (e.g., the Governor-General acting on the advice of the Prime Minister) have binding force?
What happens when conventions clash with legal powers?
Can the use of power be legal but not legitimate?

The Senate’s Power to Block Supply

Is it democratically appropriate for the Senate (an unelected or differently elected house) to block supply and bring down a government?
Does this give the Senate too much political power over the elected government?

The Role of the Monarchy in Australian Politics

Highlighted the indirect influence of the British monarchy, since the Governor-General acts as the Queen’s representative.
Should Australia consider republicanism to remove monarchical links?

The Independence of the Governor-General

To what extent is the Governor-General independent from the PM or government?
Should the GG act as a neutral constitutional umpire, or always follow advice?

The Need for Constitutional Reform

Sparked debates about whether the Australian Constitution needs updating to clarify: The powers of the GG, the roles of each House of Parliament, the processes for resolving deadlocks

Public Trust and Democratic Accountability

Many viewed the dismissal as undemocratic, since Whitlam had not lost the confidence of the House.
Raised concerns about transparency, especially since the dismissal happened without prior public warning.

The Political Neutrality of the Governor-General

Kerr’s actions were seen by many as politically motivated, especially since he had private meetings with Opposition Leader Malcolm Fraser before dismissing Whitlam.
Raised questions about partisan bias in what is supposed to be a neutral role.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

The Legislative Executive & Judicial Powers with reference to the Australian Commonwealth Constitution:

The Legislative Executive & Judicial Powers with reference to the Australian Commonwealth Constitution:
Australia is a representative democracy & a constitutional monarchy organised as a federation with a Westminster system of responsible parliamentary government

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Legislative, Executive & Judicial Powers in one Non-Westminster political & Legal System:

Legislative, Executive & Judicial Powers in one Non-Westminster political & Legal System:
The United States is a representative democracy & a republic organised as a federation with an executive presidential system of government.

→ The United States is not an example of Responsible Government.

President elected separately from Congress (equivalent to Australia’s Parliament), its possible for one political party to win the presidency without controlling congress.
E.g., for 6 years during Democratic Party President Bill Clinton’s term of office, the HOR & Senate were controlled by the Republican Party.

→ In a Responsible Parliamentary (Westminster) System only the legislature is directly elected – the legislature chooses the executive from its own ranks.

In the USA there are elections for both arms & the President appoints their cabinet – appointees are not members of congress or elected officials accountable to congress – they’re accountable directly to the president only.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Legislative Powers with Reference to the USA (Article 1):

Article 1, Section 1 vests legislative power in the Congress of the U.S, consisting of the Senate & HOR:
Congressional elections are separate from Presidential elections.

Section 1: Vests legislative powers in a Congress consisting of a Senate & House of Representatives

Section 2: The House of Representatives

Section 3: The Senate

Section 4: Elections for both houses

Section 5: The procedures of each house

Section 6: Payment & limitations of members of Congress

Section 7: The passing of bills

Section 8: The powers of the Congress

Sections 9 & 10: States and other matters

Division of Legislative Power: Law-making Powers are Specified & Enumerated in the Constitution:

→ Exclusive: Congress is given 27 specific powers under Article 1 Section 8 of the Constitution.

This is known as the enumerated powers, and they cover such areas as the rights to collect taxes, coin money, declare war & establish lower federal courts.
The Constitution also lists powers denied to Congress (article 1, Section 9), & the Bill of rights prohibits Congress from making laws limiting individual liberties.

→ Residual: Initially the Constitution emphasised what states cannot do (Article 1, Section 10) & gave them authority in just a few cases.

Changed by the Tenth Amendment, which gave states all powers either not specifically delegated to Congress or specifically denied to states (like Australia).

→ Concurrent: Central & state governments may have parallel or overlapping interests or needs.

Power in these areas may be exercised simultaneously by both state & national governments (e.g., the power to tax).

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

America’s Legislature – Congress:

Roles & Responsibilities:

→ Writes & Enacts Laws

→ Enacts Taxes, authorises borrowing & sets the budget

→ Has the sole power to declare war

→ May start investigations especially against the President (starts process of impeachment).

→ The Senate confirms presidential appointments of federal judges, executive department heads, ambassadors & many other officers, subject to confirmation by the Senate.

→ The Senate ratifies treaties

→ The HOR may impeach, & the Senate may remove, executive & judicial officers.

→ Creates federal courts except for the Supreme Court (USA’s Constitutional Court) & sets the number of justices on the Supreme Court.

→ Congress may override presidential Vetos by a supermajority in each house.

If two thirds of the Representatives & Senators support the bill, the President’s veto is overridden & the bill becomes a law.

→ Choosing a President: If no candidate receives a majority of Electoral College votes in a presidential election, the HOR chooses a president.

Congress also has the power to approve the selection of a vice-president if that office becomes vacant (1974 following Vice-President Ford’s accession to the presidency after President Nixon resigned).

Comparison with Australia:

→ Introduction of Bills: In Australia bills are introduced by ministers; in the USA they’re introduced by individual members (no government bills, a bill may be introduced at the request of the President e.g., the budget).

→ Committees: Bills may be referred in Australia whereas bills must be referred in America.

→ Voting: In Australia if vote is tied in the senate it fails, the President of the Senate (Vice President & his proxy) votes in the USA.

→ Assent: In Australia Royal Assent is granted by the GG, in the USA the President signs a bill into law & has the power of veto but this is overridden if there is a 2/3 majority in both houses of Congress.

America’s Strong Bicameral System:
Both America & Australia have a strong bicameral system where both houses are equal in power.

House of Representatives:

→ HOR represents the people who live in a congressional district.

→ Each of the 435 districts has roughly the same number of people.

→ The states with the smallest populations have one representative called “representatives-at-large”.

Senate:

→ Each state has two senators, regardless of the size of its population.

→ There are 100 senators representing 50 states.

→ Each senator is elected to a six year term.

→ Every two years, one third of the total members (33 or 34) come up for election.

Comparison of Similarities & Differences between the US & Australia:

Similarities:

→ Both are Liberal democracies characterised by Constitutionalism, the rule of law & SOP.

The US was one of two formative influences on the Australian system.
It is the source of some of Australia’s key features such as federalism, strong bicameralism & a completely separate judiciary.
Federalism is a US innovation that was adopted by Australia.
The structure & function of the two countries’ legislatures are near identical except that the Australian Parliament contains the Executive & US Congress does not.
The Australian Senate is modelled directly on the US Senate.
The High Court of Australia is modelled closely on the US Supreme Court.

Differences:

Another major influence for Australia was the UK, which was the source of constitutional monarchy & responsible parliamentary government.
Greatest difference is the form of the executive arm of government.
The President is directly elected, chosen by the party with the majority in the HOR.
There is distinct separation of legislative & executive branches in the US system, & a fusion in the Australian system, inherited from the UK.

Example of an Executive Check against the Legislative: Presidential Veto:

→ A presidential veto is the rejection of a bill passed by the majority votes of the HOR & Senate.

→ While Congress can vote to override a presidential veto, causing the bill to become law without presidential approval – this is rarely done.

→ More often than not, the threat of presidential veto is sufficient motivation for congress to modify the bill prior to its final passage.

→ Veto Process:

When a bill is passed by both the House & Senate, it is sent to the president for a signature.
All bills must be signed by the president before they become law.
Amendments to the constitution requiring a two-thirds vote of approval in each chamber, are sent directly to the states for ratification.
The president is constitutionally required to act on it in one of a few ways: sign it into law within the 10-day period prescribed in the Constitution, issue a regular veto, or let the bill become law without his signature.

→ Regular Veto:

When Congress is in session, the president may within the 10 day period, exercise a regular veto – sending the unsigned bill back to the chamber of congress from which it originated along with a veto message stating his reasons for rejecting it.

→ Bill Becomes a Law without the Presidents Signature:

When Congress is not adjourned & the president fails to either sign or veto a bill sent to him by the end of the 10-day period, it becomes law without his signature.

→ How Congress Responds to a Veto:

When the President returns a bill to Congress along with a veto message, that chamber is constitutionally required to “reconsider” the bill.

→ Overriding a Veto:

Action by both the House & the Senate is required to override a presidential veto.
A two-thirds majority vote of the members present is required to override a presidential veto.
If both houses of Congress successfully vote to override a presidential veto the bill becomes law.
According to the Congressional Research Service, from 1789 to 2004 only 106 of 1,484 regular presidential vetoes were overridden by Congress.

Example of a Legislative Chack Against the Executive: Approving Appropriations by Congress:

→ The Power to appropriate funds gives Congress influence over all activities of the Federal Government.

→ Article 1, Section 9 of the U.S Constitution specifies that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”

→ The constitution allows the Legislative to limit the power of the Executive, as seen in the Government shutdown of 2018-2019 over funding requested by Trump to build a wall between the USA & Mexico.

→ The Deadlock between the two branches of government is a result of the Democrats gaining control of the HOR following the 2018 mid term elections, & involves the use of presidential Vetoes.

Presidential vetoes became a significant tool used by President Donald Trump to push back against legislative opposition, particularly from the newly Democrat-controlled House of Representatives.
The Democratic Party gained control of the HOR creating a divided government.
This increased congressional resistance to Trump’s agenda, especially his demand for $5.7 billion in funding for a border wall with Mexico.
The disagreement led to a 35-day government shutdown (December 2018 – January 2019), the longest in U.S. history.
After the shutdown, Trump declared a national emergency in February 2019 to divert military funds toward building the wall without congressional approval.
Congress passed a resolution (March 2019) to terminate the national emergency declaration, arguing it was an overreach of executive power.
Trump vetoed this resolution—his first presidential veto—on March 15, 2019, preserving the emergency declaration.
The House attempted to override the veto but failed to reach the two-thirds majority needed.
Showed how the executive branch can resist legislative checks using formal constitutional powers.
Highlighted the limits of congressional influence, even when controlling one chamber.
Demonstrated a tension between the legislature’s “power of the purse” and the president’s use of emergency powers to bypass it.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Executive Powers with Reference to the USA (Article 2):

Article 2, S1 vests executive power in a President & Vice President elected together, who will hold office for a term of 4 years (22^nd amendment to Constitution limits President to two terms).

→ It also establishes the Electoral College.

Powers of the President:

→ The President of the United States is elected to a four-year term by electors from every state.

→ The electors make up the electoral college comprised of 538 electors.

→ In contrast to the many powers it gives Congress, the Constitution grants few specific powers to the President.

→ Most of article II deals with the executive branch relating to the method of election, term & qualifications for office, & procedures for succession & impeachment, however the powers of the president are not limited to those granted in the constitution.

The President is both the Head of State & the Head of Government.
The President appoints a Cabinet of 15 known as secretaries of state to run day-to-day government responsible to the president confirmed by the Senate in Confirmation hearings.
The President appoints Supreme & Federal court judges (confirmed by the Senate)
The President is the Commander in Chief of the armed forces with the power to call into service the State units of the National Guard & may be given the power by congress to manage national security of the economy (only congress can initiate/declare acts of war).

Executive Orders:

→ In times of emergency, the President can override congress & issue executive orders with almost limitless power.

→ Lincoln used an executive order in order to fight the Civil War, Wilson issued one in order to arm the US before it entered WWI, Roosevelt approved Japanese internment camps during WWII with an executive order.

→ Executive orders have the force of law but do not have to be approved by Congress.

→ What can be done with an Executive Order:

Allows the U.S. President to direct federal agencies and manage operations without needing congressional approval.
2017: Trump issued Executive Order 13769, temporarily banning entry to the U.S. from several predominantly Muslim countries. This showed how executive orders can quickly implement policy, especially on national security or immigration.
Donald Trump’s Travel Ban Blocked Temporarily by US Federal Judge in Seattle-February 2017
A US Federal Judge in Seattle granted nationwide temporary restraining order blocking Trumps that barred nationals from several nations from entering the US.
The Judges order represents a major challenge to the Trump administration.
The Judge declined to stay the executive order, suggesting that travel restrictions could be lifted immediately.
Supreme Court Upholds Trump’s Travel Ban on some Muslim-Majority Nation – June 2018:
The Supreme Court upheld Trump’s Controversial travel ban affecting several mostly Muslim countries, offering limited endorsement of the President’s executive authority on immigration.
The 5-4 ruling marks the first major high court decision on a Trump administration policy upholding the selective travel restrictions.
President Biden ends Trump’s Muslim Travel-Ban January 2021:
Biden ended Trump's Muslim travel ban by signing an executive order on his first day in office.
The order revoked Executive Order 13769, immediately lifting entry restrictions on citizens from several Muslim-majority countries, restoring the U.S. commitment to non-discriminatory immigration policy.

→ What can’t be done with an Executive Order:

The President can’t issue an executive order that would violate an existing law passed by Congress, the order also can’t be deemed to violate the US constitution.

→ Can an Executive Order be Overturned:

Executive orders can be overturned in the courts
Although hardly any executive orders have been overturned by the court – one that was overturned was an order from Bill Clinton that tried to stop the government from contracting organisations that had strike-breakers on their payroll.
The court deemed the order conflicted with the National Labor Relations Act & Invalidated it.
A new President can also overrule the executive orders of a previous president, which is the most common way they’re overturned.

War Powers:

→ Congress holds the power to declare war.

→ As a result, the President cannot declare war without their approval, however as the Commander in Chief of the armed forces, many presidents have sent troops to battle without an official war declaration e.g., Vietnam, Korea.

→ 1973 War Powers Act attempted to define when & how the President could send troops to battle, adding strict time frames for reporting to Congress.

The Executive Office of the President:

→ Presidents depend on White House staff for tasks ranging from policy to speechwriting.

→ Staff are loyal to the president, not Congress or agencies.

→ The Constitution gives little detail on executive structure, only mentioning “executive departments” (basis for the cabinet).

→ Presidents mainly rely on staff but consult cabinet members for expert advice in specific areas.

→ Cabinet secretaries are appointed by & responsible to the president – they are responsible for running the departments they head.

→ The Executive Office of the President comprises four agencies that advise the president in key policy areas: the White House Office, the National Security Council, the Council of Economic Advisors & the Office of Management & Budget.

→ The President’s main advisers, often long-time friends or people who played a key role in the election make up the White House Office.

→ It includes the President’s personal lawyer, press secretary, appointments secretary, & other support personnel.

→ The most important position in this group is the Chief of Staff, who is responsible for seeing that the president’s legislative goals are carried out by working with Congress on the Legislative agenda.

The Cabinet:

→ George Washington appointed the first executive department heads in 1789: the attorney general, secretary of state, secretary of treasury & secretary of war.

→ At the scope & functions of the federal government grew, the number of executive departments increased.

→ The heads of these departments, who all have the title secretary (except the attorney general of the U.S Department of Justice), make up the core of the Presidents Cabinet.

The Vice President & Presidential Succession:

→ Under the Constitution, the Vice President serves as the President of the Senate (voting only to break ties) & succeeds the president in the event of death, resignation, o the inability of the president to discharge duties.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

How Cabinet Members are Chosen is a Major Point of Difference Between Australia & the USA:

How are Cabinet Ministers Chosen in Australia:
Chosen by the PM from Elected members of Parliament, usually from the Governing Party Coalition. They are formally appointed by the Governor-General on the Prime Minister’s Advice.

How are “Cabinet Secretaries” Appointed in the US?
Cabinet secretaries in the US are nominated by the President & must be confirmed by a majority vote in the Senate.

Discuss the Key Differences where the Head of Government Derives their Power in Australia & the US:
In Australia, the PM derives power from being the leader of the majority party in the lower house HOR. In the US, the President derives power directly from the people through a national election & holds a separate mandate from the Legislature.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Judicial Powers with Reference to the USA (Article 3):

→ Article 3 of the Constitution establishes the Federal Judiciary.

→ Article III, Section I sates that “The Judicial Power of the United States, shall be vested in one supreme Court, & in such inferior Courts as the Congress may from time to time ordain & establish”.

→ Although the Constitution establishes the Supreme Court, Congress decides how to organise it & the Judiciary Act of 1789 creates the Supreme Court with six justices & establishes the Federal Court System.

The Justices:

→ Various Acts of Congress have altered the number of seats on the Supreme Court.

→ Today there is one Chief Justice & eight Associate Justices of the US Supreme Court.

→ Like all Federal judges, justices are appointed by the President & are confirmed by the Senate, typically holding office for life.

→ The salaries of Justices cannot be decreased during their term of office protecting the independence of the Judiciary from the Political branches of government.

The Courts Jurisdiction:

→ Article III, Section II of the Constitution established the Jurisdiction (ability to hear a case) of the Supreme Court.

→ The Court has original Jurisdiction (a case is tried before the court) over certain cases – e.g., suits between two or more states &/or cases involving ambassadors & other public ministers.

→ The Court has Original Jurisdiction (a case is tried before the court) over certain cases e.g., suits between two or more states &/or cases involving ambassadors & other public ministers.

→ The Court has appellate jurisdiction (the Court can hear the case on appeal) on almost any other case involving a point of constitutional &/or Federal law (e.g., cases where the US is a party & cases involving treaties).

→ When exercising appellate jurisdiction, the court with a few exceptions does not have to hear a case. The Certiorari Act of 1925 gives the Court discretion to decide whether or not to do so.

→ In a petition for a writ of certiorari, a party asks the Court to review its case.

→ The Supreme Court agrees to hear about 100-150 of the more than 7,000 cases it is asked to review each year.

Judicial Review:

→ The Ability of the Court to declare a Legislative or executive Act in violation of the Constitution, it’s not found within the text of the Constitution itself.

→ The Court established this Doctrine in the case of Marbury v. Madison (1803).

The Court had to decide whether an Act of Congress or the Constitution was the Supreme law of the land.
A suit was brough under the Judiciary Act of 1789, but the Supreme Court noted that the Constitution didn’t permit the court original Jurisdiction in this matter.
Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land the Court held that an Act of Congress contrary to the constitution could not stand.
In subsequent cases, the Court also established its authority to strike down state laws found to be into violation of the Constitution (including the Bill of rights).
Therefore, the Court has the final say over when a right is protected by the Constitution or when a constitutional right is violated.

Role of the Supreme Court:

→ It play an important role in the constitutional system of government;

First, as the highest court in the land, it is the court of last resort for those looking for justice.
Second, due to its power of Judicial review, it plays an essential role in ensuring each branch of government recognises the limits of its own power.
Third, it sets appropriate limits on democratic government ensuring that popular majorities cannot pass laws that harm &/or take undue advantage of unpopular minorities.

→ It serves to ensure the changing views of a majority do not undermine the fundamental values common to all Americans, i.e., freedom of speech, freedom of religion & due process of law.

Significance of Roe v Wade 1973:

→ Roe v. Wade (1973) is a landmark U.S. Supreme Court case exemplifying the judicial power outlined in Article III of the Constitution, which gives federal courts the authority to interpret laws and the Constitution.

The Court ruled that the right to privacy under the 14th Amendment’s Due Process Clause protects a woman’s right to have an abortion.
This decision legalized abortion nationwide, overriding state laws that banned or restricted it.
It showed the power of the judiciary to shape national policy and extend constitutional rights, even in socially and politically controversial areas.
Roe also highlighted how the Supreme Court can check the legislative and executive branches by declaring laws or actions unconstitutional.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Checks & Balances compared between Australia & the United States:

→ The separation of powers alone, is insufficient to limit power, a system of checks & balances is also essential.

→ Checks & Balances enable the powers of each branch to be limited by those of the others.

→ Robust checks & balances are a dominant feature of the US political & legal system, they are also present in the Australian system but to a lesser degree.

→ Example 1: Appointment of Judges to the Highest Court in each Country:

The President nominates judges for appointment to the US Supreme Court, but the senate must confirm each appointment.
Judicial appointments involve two branches of government, preventing the President from possessing the sole power to influence the composition of the Supreme Court – the third branch.
In Australia the Attorney General (chief law officer & a member of cabinet) appoints judges without requiring parliamentary approval.
The Australian model adopts the British practice – which has fewer checks on executive power.

→ Example 2: Relationship between the executive & legislative arms of government:

In the US these branches are completely separate.
The directly elected President is both head of state & head of government.
The people elect Congress in Separate elections.
In Australia, the unelected monarch is head of state & the indirectly elected PM is the head of government.
Cabinet Ministers must be members of parliament & the Crown is part of both the executive & the legislature.
There is a single election for parliament which forms government within its lower house following convention.
The Australian executive & legislature is fused (the Crown is part of each).
Additionally, Cabinet ministers are drawn from Parliament.
The people choose both branches at one election.
Separation of Australian executive & legislative powers is weaker than that of the US, & the checks on Australian executive power are correspondingly less stringent.

→ Example 3: Impeachment – Legislative Chack on the Executive:

Impeachment is a powerful legislative check on the executive branch in the U.S. Constitution, allowing Congress to remove the President, Vice President, or civil officers for "treason, bribery, or other high crimes and misdemeanours" (Article II, Section 4).
While the term is deliberately vague, it encompasses serious misconduct that threatens the stability or integrity of government.
The House of Representatives holds the power to impeach (formally charge), and the Senate conducts the trial, with a two-thirds majority required for conviction. This ensures accountability at the highest level, preventing abuse of power.
For example, Donald Trump was impeached twice by the House—first in 2019 over abuse of power and obstruction of Congress, and again in 2021 for incitement of insurrection—though the Senate acquitted him both times.
Judges can also be impeached, reinforcing that no branch or official is above the law.

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Legislative, Executive and Judicial Powers with reference to the Commonwealth Constitution (Australia) and with Comparison to one non-Westminster Political & Legal System:

Comparison of the Primary Checks & Balances between Australia & the US with Examples:

Senate Confirmations of President Appointment to Cabinet & Supreme Court Justices:

In the United States, the Senate must confirm presidential appointments to the Cabinet and Supreme Court. For example, Brett Kavanaugh was confirmed to the Supreme Court in 2018 after a high-profile Senate hearing.
In Australia, there is no such confirmation process—appointments are made by the Governor-General on the advice of the Prime Minister, such as the appointment of Stephen Gageler as Chief Justice in 2023.

Congress must Approve Acts of War & Expenditure Bills:

Congress in the U.S. must approve acts of war and all expenditure bills, giving it strong control over executive decisions. For example, Congress refused to fund Donald Trump’s border wall, leading to the 2018–19 government shutdown.
In Australia, Parliament also controls government spending, but the Prime Minister can commit troops to conflict zones without explicit parliamentary approval, as seen when Prime Minister John Howard sent troops to Iraq in 2003.

President can Veto Congress’ Legislation, & Congress can Override a Presidential Veto:

The U.S. President can veto legislation, though Congress may override it with a two-thirds majority. For instance, Trump vetoed a bill in 2019 to block his national emergency declaration, and Congress failed to override it.
In Australia, there is no veto power; the Governor-General’s assent is largely a formality, as seen in the standard passing of bills after both Houses approve.

Supreme/Federal Courts’ Review of Executive Orders:

Both the U.S. Supreme Court and the Australian High Court can review executive actions. In the U.S., the Supreme Court ruled against Trump’s attempt to end DACA in 2020, declaring the action unlawful.
In Australia, the High Court ruled in 2001 that the detention of asylum seekers on the MV Tampa was lawful, upholding the government’s controversial executive decision.

Supreme/Federal Courts’ Interpretation & Review of Laws made by Congress:

Likewise, both courts can interpret and strike down laws. In the U.S., the Supreme Court’s decision in Roe v. Wade (1973) legalized abortion nationwide, interpreting the Constitution to protect privacy rights (although this was later overturned).
In Australia, the High Court’s 1992 Mabo decision overturned the legal fiction of terra nullius, recognising native title rights under common law.

Impeachment of Executive, including the President

In the U.S., the President can be impeached by the House of Representatives, and tried in the Senate. Donald Trump was impeached twice (in 2019 and 2021), though the Senate acquitted him both times.
Australia lacks a formal impeachment process; instead, a Prime Minister can be removed by party leadership challenges, as seen when Malcolm Turnbull was replaced by Scott Morrison in 2018.

Impeachment of Justices:

U.S. Supreme Court Justices can be impeached and removed by Congress for misconduct, though this is rare (the only successful case was Justice Samuel Chase in 1804, who was acquitted).
In Australia, Section 72 of the Constitution allows the removal of High Court Justices for proven misbehaviour or incapacity, though this has never occurred.

The Chief Justice Presides in the Senate during a President’s Impeachment Trial:

Finally, in the United States, the Chief Justice presides over Senate impeachment trials of the President. This occurred in Trump’s first impeachment trial, where Chief Justice John Roberts presided.
There is no equivalent in Australia, as the High Court has no role in political impeachment or disciplinary trials.