Politics and law chapter 1

politics

the system of political decision-making in society. In all societies individuals & groups have conflicting interests, beliefs & goals. a contest for the exercise of power and influence.

government

body within a society that has the power to make laws and provide a public service, made up of individuals (judges, politicians, public servants) and institutions (courts, parliament).

impact of government

is the essential basis of a good society

democracy

popular sovereignty with the people (people govern themselves), based on the will of the majority, fundamental feature is majority rule. excessive democracy can be tyrannical because of majority rule.

sovereignty

the right to govern a territory and its people through a political and legal system. is vested in rulers and is the source of political and legal power.

types of democracy

direct (all citizens participate directly in their own government, developed in ancient Athens) and representative (form of government in which citizens choose other to reflect their concerns and values in a representative law-making assembly)

representative democracy

elected bodies exercise popular sovereignty. parliamentary sovereignty means parliament is superior to all other bodies within the political and legal system. they represent people, make laws, form government and hold it accountable.

Athenian democracy

unacceptable today because it withheld political rights and freedoms + excluded from government a bulk of the population (women, slaves, foreigners). modern democracies vest sovereignty in women and naturalized citizens. was an illiberal democracy because not everyone had basic entitlements (including political and legal rights + freedoms)

Liberal democracy’s operating principles

majority rule, equality of political rights, political freedoms, political participation, rule of law, separation of powers, looks out for the minorities. has safeguards to prevent democracy from becoming tyranny of the majority through constitutionalism (power should be limited instead of absolute, limits royal power to stop it from undermining democracy), laws that limit government power, citizenship

majority rule in Australia

a legislature is elected to make laws reflecting the popular will, executive is elected to carry out those laws.

elections for legislative/parliament (chosen by the people of Australia in elections)

representatives in parliament choose executive/government (The party who holds the absolute majority of seats in House of Representatives),

Referendums for constitutional change (Double majority needed to change constitution).

electors vote for parliament directly and indirectly choose their government.

branches of government with majority rule

are legislative and executive (directly and indirectly voted). judiciary is appointed by government and doesn’t reflect majority rule.

elections

absolutely necessary because it ensures accountability. citizens use political freedoms to get political information to make voting decisions in a liberal democracy.

strength: electors vote for parliament directly and have representatives to make laws reflecting their will. weakness: Each state elects 12 senators, regardless of population size. This means smaller states like Tasmania (around 570,000 people) have the same Senate representation as New South Wales (over 8 million people), leading to overrepresentation of smaller states.

absolute majority

half of all +1

double majority

a national majority (more than half) of electors from all states and territories, and a majority of electors in a majority of the states (i.e. at least four of the six states).

equality of political rights

all citizens shall be equally entitled to political rights - right to hold public office, right to participate in government, right to vote. compulsory voting increases popular participation by treating voting as a civic duty and creating incentives to vote. one vote one value- every elector’s vote has the same value.

section 44

outlines qualifications to sit in parliament- people who have allegiance/citizenship to a foreign power, convicted of treason or crimes with 1 year+ sentence. Exclusion of employees of state/federal executives ensures a separation of executive and legislative powers + excluding people with financial relationships with the commonwealth prevents conflicts of interest.

section 44 is essential for the accountability of parliament and ensures the loyalty of lawmakers to the commonwealth and ensures persons of good character are eligible.

political freedoms

entitlement enjoyed by all citizens that enable political participation (freedom of speech, conscience, association, assembly, media). enable public criticism of the government for accountability and lets good ideas be accepted and bad ones rejected. political freedoms and rights enhance popular participation in a representative democracy, so the representative government will be healthier and more vibrant.

bounds of political freedom

Limits = Bounds of law, e.g. defamation, racial or hate speech. Political freedoms are broad BUT not unlimited. Minorities must be protected. implied constitutional right to political communication but not to free speech.

political participation

actively participate in the government and can influence lawmaking and government decisions (voting, debating, protesting)

Rule of law

critical to liberal democracy. the law is the ultimate authority- no one is above the law and the law must be followed in all circumstances. limits power and protects from abuses of power. universality of the law, law should be known clear and coherent, independence of the judiciary, freedoms and equality of the law

Amato v commonwealth of Australia

Ms. Amato took the federal government to court and won when claiming the government’s method of calculating her income and subsequent welfare payment through computer algorithms that averaged her income was unlawful. this led to the government waiving 470,000 debts and refunding over 700 million to thousands of welfare recipients. shows accountability of government and ministers to the law by independent courts + ordinary people are equal to ministers in the eyes of the law.

universality/supremacy of the law

law is superior to all other forms of social control (customs, traditions e.g. first nations people, migrants to Australia (FGM, child marriage). Laws must reflect Australian moral values, so sometimes they must change to reflect the moral values of that time (murder, marriage equality). moral discomfort with the law is a strong force.

e.g. Migration Act 1958 moral discomfort, misaligned with obligations for human rights of asylum seekers and refugees, marriage act 1961 legalised discrimination and inequality.

law should be known, clear, consistent and coherent

people must know the law so they can behave lawfully (published in government gazettes, ignorance of the law is no excuse), laws must always look forward in futuro not ex post facto (cannot be held guilty for a past action according to a new law) not retrospective otherwise it would contradict that people must know the law.

independence of the judiciary

judiciary can’t be influenced by the parliament, government, wealth or influence, otherwise it would undermine the equality of rights and freedoms necessary for liberal democracy. depends on separation of powers to protect the superiority of law over competing sources of power and protects courts.

freedoms and equality of the law

legal rights (presumption of innocence, right to silence) guard against the use of arbitrary power. people are equal before the law with rights to be treated without discrimination and bias.