UNIT 4 POLITICS AND LAW ATAR

criteria for elections

- elections must occur regularly and frequently

- elections must protect minority rights, express the will of the majority and allow free expression

- elections must prevent the influence of those seeking office

how does australia fulfil the criteria for elections

- section 7 and 24 of the constitution outline specific term limits (6 and 3 respectively) thus elections occur regularly

- proportional representation in the senate ensures minority rights are represented

- AEC established by the Commonwealth Electoral Act ensures elections are free from influence of those seeking office

- preferential voting in the HOR ensures will of the majority is represented

methods ensuring accountability in the house of representatives

- single member elecorates: e.g. Craig Thompson (2013) losing his seat of Dobel following allocation of HSU funding missuse

- majoritarian electoral system: creates stable majorities but the winners bonus distorts awarded seats e.g. Greens won 10.4% of the vote in 2019 election but won 1/151 seats

- sitting member last campaign: parties hold member to account through this process or external bodies can e.g. GetUp! sent out 90 volunteers with how to vote cards placing Nikolic last in 2016, resulted in losing seat by 10% of the vote

- marginal seat campaign: for seats where 56% of less is received of the vote. e.g. seat of Mayo lost by Jamie Briggs to Rebekha Sharkie with a margin of 5.5%

methods ensuring accountability in the senate

- multimember electorates

- equal senate representation: e.g. TAS has 13x the voting power as a senator from NSW

three special standing committees for privileges and interests

- house standing committee for privileges and members interests

- senate standing committee for privileges

- senate standing committee for members interests

standing orders

- rules governing the conduct of all the business of the HOR and senate

- governs conduct, order of business and how motions are voted on etc.

- spell out processes and procedures for everything that goes on in chambers and committees

speaker and the president

- speaker and president are the presiding officers of the HOR and senate respectively

- responsible for enforcing standing orders

- parliamentarians may refer matters to presiding officers

- have the power to exclude members of parliament due to misbehaviour

- procedural digest is published which contains points of orders via speaker in the HOR

- allows public and media to hold presiding officers to account via evaluating decisions

- e.g. Bronwyn Bishop (former liberal party member) ejected 400 MHR in her time, 3 which were from the liberal party

order of business

- agenda for each sitting day in parliament

- notice paper of senate published every day - if senators wish to debate/move motions they must have their names extended

- speaker/president runs business according to order of business and notice paper

hansard

- debates in both chambers are published after chambers/committes have finished

- provides accurate records which are published online thus public and media can hold parliament to account via fact checking

matters of public importance

- allows MPs to speak on current issues if they have not already been raised in chamber

- e.g. MPI raised in 2012 regarding Craig Thompson

parliamentary joint committee on human rights

- established by the Human Rights Act 2011

- statement of compatibility must be published for each piece of legislation

- ensures acts passed are in complience with several international covenants Australia has signed

two aspects of judicial review

- HC has power to adjudicate the constitutional validity of parliament's statute

- HC and other federal courts have the power to interpret commonwealth statute

ultra vires

- translates to beyond the powers

- statutes that do not reference a head of power within the executive and concurrent powers may be struck down via the HC on this basis

- these heads of powers are referenced in section 51

Williams no. 2 case 2014

- Williams brought forward the case to the HC regarding amendements to the Financial Management and Accountability Act 1997

- Gillard tried to authorise payments to the National Schools Chaplaincy Program

- payments were authorised under section 51 (xxiiiA)

- HC found that under this section payments had to go to the direct beneficiaries (students) not the Scripture Union of QLD

maxims of interpretation

rules and legal principles that have developed over a long period of time. maxims of interpretation assist courts in applying consistent methods of interpretation to statute. maxims are inherited from the british system.

esjudem generis

translates to the same kind. refers to when general words appear a list of specific words, thus creating a class. courts decide what belongs in the class on a case by case basis

noscitur a sociis

translates to by the company it keeps. courts read the words of an act with its context of surrounding words to derive meaning

expressio unis est exclusion alterius

translates to the express mention of one thing is to exlude all others. an act which contains specific words creating a class but does not contain a general term following them

literal rule

a rule of statutory interpretation that gives the words their plain ordinary or dictionary meaning

mischief rule

interpretation of an act with parliament's intentions

golden rule

used if the literal rule results in an absurd outcome, with judges interpreting the offending word to reduse the absurdity

formal executive

refers to the gg and the federal executive council as per section 1 of the constitution

real executive

refers to the pm and the cabinet, who are responsible for carrying out passed legislation and subordinate legislation using powers delegated to it via parliament. uses policies to outline how gov. will carry out law

public servants

refers to commonwealth employees that execute the business of governing. made of public servants employed by the Public Service Act 1999

administrative executive

appointed officials who provide administrative services to executive government. arranged into gov. departments and agencies and statutory authorities that administer the law of parliament.

westminster chain of accountability

1. the people directly elect a parliament in a general election

2. the lower house of the parliament choses a government by giving its confidence to a group of ministers who form a cabinet of government - the people thus have indirectly elected a government

3. the cabinet ministers head appointed government departments and provide democratically mandated policy direction

4. government departments implement the mandates policy under their minister's direction and provide advice to the minister

5. the parliament, representing the people, holds the ministers collectively and individually responsible for their administration of governemnt under westminster convention

individual ministerial responsibility

a westminster convention of responsible parliamentary government by which a minister may be held to account by the lower house through censure motions. part of parliament's responsibility function.

collective ministerial responsibility

a westminster convention of responsible government by which an entire executive government may be held accountable via the lower house through a motion of no confidence. part of parliament's responsibility function.

censure motion

a motion to discipline a minister or government. a successful censure motion in the HOR would by convention require the minister to resign. censure motions are almost always defeated via party lines which government will always win. at best they provide the opposition with opportunity to debate.

motions of no confidence

a motion by which the lower house withdrawls its support from the government. successful motions of no confidence would require a minister/government to resign. motions normally defeated via party lines. provide the opposition to debate at best.

executive dominance

dominance of the executive arm of government. over the legislature in particular, the lower house and much less in the senate. it is the combined effect of the westminster's formation of executive government in the lower house, the emergence of highly disciplined parties and the use of a majoritarian electoral model

senate estimates

comissions occuring biyearly, composed of three gov senators, 2 non gov senators and one cross bencher. responsible for inquiring into senate and public service financial matters, as well as general activity

senate regulations and ordinances committee

committee with the role of supervising how executive uses subordinate law making power, to ensure the separation of powers between the executive and legislature is not breached. this way the legislature retains ultimate law making control.

subordinate legislation

law made by government under the authority of a statute. law with flexibility to be adjusted by the executive to ensure efficiency under circumstances that change. e.g. Social Security Act allows executive to alter the wage pension index

disallowance allert

alerts published in delegated legislation monitor by the senate regulations and ordinances committee to make recommendations to the senate to disallow a particular regulation, ordiance or instrument

auditor general

an independent officer responsible for auditing and reporting to the legislature regarding a government's spending and operations

administrative appeals tribunal

AAT created by Administrative Appeals Tribunal Act 1975 is concerned with accountability of the public service. functions as a court bar judicial power

writ of mandamus

a court order requiring a public official to cary out a particular action. part of the judicial review and the accountability of the executive. a court cannot order an official to do anything unlawful.

injunction

a civil remedy. a court order preventing a party from carrying out a particular action, with the force of the law

individual ministerial responsibility example

- Jamie Briggs 2015 behaved inapporpriately w a female staffer in hong kong

- through media pressure and critisim from the Shorten opposition, Turnbull forces Briggs to resign thus censure motions not effective

- more effective in senate i.e. George Brandis subject to motion in 2015

collective ministerial responsibility example

- 1941 resulted in McFadden losing confidence

- occured not through motion of no confidence but through 1 pound change in the budget being blocked

purpose of senate estimate committee

- process for scrutinising government spending, and in a modern context, government opperation

composition of senate estimate committee

3 gov senators, 2 opposition and one crossbencher

strengths of senate estimates committee

- large scope of investigation

- can call on senators and public servants

- able to question all aspects of activity except national security

- parliamentary privilege ensures truthful answering

weakness of senate estimates

- cannot call on HOR

- cannot reverse gov spending

senate estimates example

Abbott 2013 avoided scrutiny re: stop the boatds immigration activity as they were matters of national security

strengths of senate regulations and ordinances committee

- delegated legislation monitor publishes recommendations of subordinate legislation - allows for public accountability

- dissallowence alerts published in delegated legislation which are debated on by senate thus allowing oversight on law making power of parliament

weakness of senate regulations and ordinances committee

- not partisan in conduct as chair is from gov party, 3 members from gov party, and 3 non gov

composition of the parliamentary joint committee on human rights

5 HOR and 5 senate

strengths of parliamentary joint committee on human rights

- scrutiny report published to both chambers to alert of any concerns thus is a check on executive

- lack of exec dominance ensures strong check

- covenants signed by AUS are a check as AUS relies on self preservation and being seen to do the right thing

weaknesses of parliamentary joint committee on human rights

- recommendations not legally binding

- no formal consequence for not complying with international covenants

appointment of the auditor general

- appointed by gg using formal executive powers of the constitution

- 10 year term limit

- recommended by joint committee of public accounts and audits and PM

- independent officer

- currently Grant Hehir

auditor general example

- sophie mirabella claimed electorate of Indi lost out on $10M in hospital funding due to lsoing seat to Cathy McGowan

limitation of AG

- receive 0.01% of government's budget of $675B thus limiting investigation capacity due to lack of resources

strengths of administrative appeals tribunal

- 400 acts in place that enable AAT to review administrative appeals

- large scope of jurisdiction

- considered merits of cases not just facts

- independent body so no bias in decisions

administrative appeals tribunal example

- penis case 2009 - sought disability payments from centrelink 2012 but was denied

- appealed to AAT but they too ruled in favour of centrelink

injunction example

- plaintif m70 v minister for immigration and citizenship prevented Gillard's Malaysia solution

- Malaysia solution contravened section 19A of migration Act

- Malaysia had not signed the 1951 Refugee Convention

appointment of gg

- section 2 says at queen pleasure

- convention results in queen accepting recommendation of pm

- ratified in the 1931 statute of westminster

- gg undertakes an oath of office and alligence in the floor of the senate infront of presiding officers and pm and chief justice of HC

role of the secretary of office of the gg

- official secretary established in GG act 1974

- role is to support gg to cary out constitutional, ceremonial and non ceremonial duties

methods of accountability for the office of the gg

- annual report of the official secretary: outlines program and budget of office, this information is transparent thus leading to sronger check on gg opperations

- accountability and the courts: office of gg able to be given injunctions e.g. Kline vs office of gg 2013 found that information requested by kline was not necessary under Freedom of Information Act 1983

strengths to appeal process

- leads to refroms thus limiting miscarriafes in future

- ratio decidendi ensures lower ranking courts must follow suit

- stare decisis means publishing of reasoning must occur

weakness to appeals process

- expensive as legal representation required

- only 15% of cases that file for special leave to appeal are granted

- no body to hold HC in check itself except for judical removal

- appeals limited to legal error not quality of judge

transparent processes

- impartial adjudicator

- hear both sides

- evidenced based decisions

- public hearings

- public confidence in courts

abrogating law

- overriding common law w statute law due to its superior nature

- civil liabilities act 2002

clarifying law

- providing further framework for common law

- native title act 1993

commonwealth parliamentary commission

- judicial misbehaviour and incapacity act 2012

- requires 3 commissioners, one must be ex judge

- required by law to report back to parliament

- unbiased

- required by law to act on comissions recommendations

process of international law

1. international body negotiates on agreement i.e. convention on elimination of all forms of racial discrimination

2. nations sign up

3. ratified by parliament

4. rda administeres by australian human rights commission and RDA minister

charter of human rights and responsibilities act 2006

- requires vic parliaments and agencies to consider human rights when developing new laws and policies

- statmenet of compatibility must be provided

- statement of inconsistency may be provided if taken to teh HC

strengths of charter of human rights and responsibilities act 2006

- disputes can be settled out of court using charter as a guide

- increased awareness of human rights

- gov. agencies include human rights in training

- fosters positive attitude

weakeness of charter of human rights and responsibilites act 2006

- bill and charters give too much power to unelected judges

- charter only requires explanayion of incompatibility no need for change

- charter focused on prevention not remedies

political representation

- the idea that a democracy should have a direct link between people and their representatives in legislation

political representation in AUS

- majority representation acheived through preferential voting and minority representation in senate

- high election enrolement (91% in 2019)

- willingness to undertake electoral reforms

- mallaportionement occurs

- limits on enrolling to vote

political representation in USA

- majority representation in senate and the presidency due to first past the post

- expense of minority representation

- regular elections - presidency is every 4 years and congress is every 2

- independent commission overseas voting (US electoral assistance commission)

popular participation

activity of making citizens voices, opinions and perspectives present in the public policy making process such that citizens can participate in their own gov

popular participation in AUS

- freedom of speech and political communiation (Nationwide News v Wills 1992)

- right to vote (section 41)

- ability to stand for elections

- voter enrollment issues for certain demographics

- dual citizenship (section 44)

rule of law

principle that all individuals are equal before the law. rejects arbitrary and absolute power.

rule of law in AUS

- individuals held accountable for actions (craig thompson)

- constitutional framework separating branches of gov

- mandatory sentencing

- anti terrorism laws which allow surveilence of individuals with out charge

judicial independence

separation of the judiciary from the legislative and executive branches of gov and making it free from interference or intimidation.

judicial indpendence in AUS

- s 72 = grounds for removal

- guaranteed tenure for ages 70

- judicial review function can intervene with unlawful legislative action (williamsn no,2)

- mandatory sentencing

natural justice

principle of justice incorportating the rile againt bias and the right to a fair hearing. requires that fiar processes determine the truth in a dispute, and courts have duty to act fairly

natural justice in AUS

- section 80 trial by jury

- george pell example

- miscarriages of justice still occur i.e. zak greives

popular participation in USA

- ability to stand for elections

- form political parties

- freedom of speech

rule of law in USA

- supreme court has power to examine constitutional validity of legislation

- cooper v aaron 1958 - denied right for arkansas school board to delay desegrigation by 30 months

- soveriegn immunity- gov cannot be sued unless it waives away its immunity

- presidential pardons may occur - mr williams

judicial independence in USA

- clause 2 section 2 of article 2 of constitution

- judges removed via impeachment from HOR followed by conviction in senate

- although president may nominate certain judges inf avour of their ideological stance

natural justice in USA

- adversarial system of trial

- innocent until proven guilty

- hearings free from bias

- access and equity

- miscarriages of justice still may occur