Legal Studies Unit 3 Topic 1: Governance in Australia

s51 of the Australian Constitution

sets out the legislative powers of the Commonwealth Parliament (the 'heads of power'). The High Court may be called upon to interpret the constitution and decide whether the Commonwealth Parliament has the power to make laws on certain matters (eg in a dispute between states and the Commonwealth).

Explain the relevance of s109 of the Constitution.

Section 109 of the Constitution states that when there is an inconsistency or conflict across State and Commonwealth law, the Commonwealth overrides the State. This provides an effective mechanism for solving inconsistencies within the 2 levels of government.

Explain the relevance of s128 of the Constitution.

Section 128 outlines the process that is needed to alter the Constitution. It states that the alteration must: pass both houses of parliament, receive royal assent and have a double majority vote (majority of individual citizens and majority of States.) This ensures that Constitution-changing decisions receive proper checks and balances.

division of powers

how the Constitution divides law-making powers between State and Commonwealth parliaments.

exclusive powers

matters on which only the Commonwealth Parliament may legislate

concurrent powers

matters on which both State and Commonwealth parliaments may legislate

residual powers

matters left to the States to legislate on. These matters are not specifically mentioned in the legislative powers granted to the Commonwealth Parliament.

High Court of Australia

interprets and applies the law of Australia; decides cases of special federal significance including challenges to the constitutional validity of laws and hears appeals, by special leave, from Federal, State and Territory courts.

double majority

a majority of voters in a majority of states, together with a majority of voters across the whole country, voting 'yes' in a referendum

challenges of changing the Australian Constitution

both houses must pass proposed change with absolute majority (bipartisan support); double majority; construction of referenda (questions); suspicion

separation of powers doctrine

requires that all 3 arms of government (executive, legislature, judiciary) be separated to ensure that no one person or group has complete control

Mabo v Queensland

The case of Mabo v Queensland 1992 (No.2) was a landmark precedent case which influenced major legal change. The case is notable for recognising the indigenous peoples existence in Australia prior to the British, in Australian common law. Prior to Mabo, the land rights of Indigenous Australians were not recognised. Mabo saw the recognition of the land rights for the Meriam people on the Island of Mer. This decision from the High Court overturned the doctrine of Terra Nullius on which the British claims of land possession were based. This meant the doctrine of native title was inserted into Australian law, and native title existed for all Indigenous people, not just the people of Mer. A year later, the Native Title Act 1993 (Cth) was passed.

Wik Peoples v Queensland

established that native title rights could coexist on land held by pastoral leaseholders and that native title was not extinguished by the granting of pastoral and mining leases. Lead to the Native Title Amendment Act 1998 (Cth) which placed restrictions on native title claims and placed greater emphasis on agreement making.

legislation

law made by parliament. Overrides common law when there are conflicts between the two. Parliament may also override common law by enacting legislation to cover areas previously covered by common law.

common law

principles of law arising from judicial decisions.

representative government

a basis for government where the citizens elect representatives to serve in the parliament and make decisions on their behalf

responsible government

a system where the government is answerable to elected representatives of the people for its actions, especially a system where the ministry is drawn from within the parliament from members of the political party or parties with the support of a majority of the lower house (the House of Representatives) and must retain the majority of that house.

house of representatives

the 'lower house' of parliament. 151 members, each representing approximately 100,000 people

senate

the 'upper house' of parliament. 76 senators, 12 from each state and 2 from each territory, regardless of the population of that state or territory

bicameral parliament

A bicameral parliament has two houses, the house of representatives and the senate. An advantage of this is that parliament is able to avoid having a high concentration of power in a single body. Another advantage is that having two houses stops reckless legislation from being passed, ensuring it goes through proper checks and balances before being enacted. A disadvantage of a bicameral system is that legislation cannot pass as efficiently and can be delayed. It also costs more taxpayer dollars to keep parliament running through the lengthy decision process

unicameral parliament

A unicameral parliament has just one legislative body that formulates and debates legislation. An advantage of this is that legislation is able to be passed efficiently which in turn reduces the taxpayer dollars spent on running parliament. Another advantage is that there are fewer elected officials to monitor for each party, so it is clearer what the values of each party are. A disadvantage of a unicameral system is that the political party with the majority of seats will generally be able to make decisions unopposed. Only having one legislative body also means parliament is less representative of the Australian population as there is a limited number of members contributing to the debate and decisions.

majority government

when the government has more than half of all members elected to the parliament

minority government

a government formed by a party or coalition of parties or independents that do not have a majority in the lower house of parliament on their own

committee system

committees comprising members of parliament that scrutinise government activities, including legislation, and inquire into specified matters

balance of power

when another political party or independent members support a minority government, these other members hold the balance of power in the parliament

double dissolution

Double dissolution is the simultaneous dissolving of the Senate and House of Representatives called by the Governor General, meaning every seat in both houses is contested, and the calling of a new election for both houses. This is the only time when all of the Senate stands for election at the same time.

What is governance and why is this such an important principle?

Governance in Australia is the establishment of policies, and monitoring of their proper implementation, via members of the government. It is an important principle as it allows rules and decisions to be made, which enhance the prosperity and viability of Australia. The government can respond to the views of the community, and to changing circumstances.

What is Received Law and why is this relevant to Australia?

Received Law is when the laws/legal system of one country is acquired by another. This is relevant to Australia as the Australian Legal system was acquired from the English Westminster system in 1788, when the colony was proclaimed.

What is the Constitution and what legislation governs it?

The Australian Constitution sets out the structure and role of the federal parliament. It outlines the powers of the Commonwealth and State government and creates the High Court, which has the power to interpret the constitution when needed. The Constitution is governed by the Commonwealth of Australia Constitution Act 1900, which came into effect in 1901, when Australia became a Federation.

How is Division of Power protected in the Constitution?

The powers of government are divided into Specific and Residual powers. Specific powers are outlined in Section 51 of the Constitution, which can either be exclusive or concurrent. Exclusive powers are only given to the Commonwealth and concurrent powers are shared by the Commonwealth and State, however, section 109 states that when there is a conflict, Commonwealth always prevails. Residual powers are those that are not outlined in the constitution. Section 106 and 107 allow these powers to go the states.

How many successful Referendas has Australia had?

Australia has had 8 successful referendas out of a total 44.

Why have we traditionally been unsuccessful in passing a Referendum?

There are many reasons why Australia has been largely unsuccessful in passing a Referendum. One reason is voter conservatism; voters would rather remain with a system that works than risk a change that could have unknown effects. Another reason is that the information surrounding what the referendum will actually change can be confusing so many people don’t actually understand what they would be voting for. Additionally, the requirement of a double majority makes it even harder for a referendum to pass, as not only does a referendum have to receive an overall majority of votes, but the majority of states as well.

Define Bipartisan.

Bipartisan involves the agreement of two political parties that normally oppose each other's viewpoints.

What is a Double Majority? Why is it important?

Australian referendums require a double majority, which is where at least 4 of the States as well as the majority of voters across all of Australia must vote “yes”. This is important as Australia is not evenly populated, with states such as Victoria and New South Wales having a much larger population than Western Australia or Tasmania. Without the double majority requirement, Vic and NSW would have a very large influence on the outcome of the referendum, though requiring a state majority prevents these 2 states from controlling the outcome.

What has been the most successful Referendum to date?

The 1967 referendum is the most successful referendum Australia has had, with 90.77% of Australia voting to remove provisions which prevented the Federal Government from making laws for Aboriginal people and excluded them from the Census.

Define Separation of Powers and where it is found in the Constitution. Outline the role of each power within Australia.

Separation of Powers aims to divide the responsibility of creating (legislative), implementing (executive) and interpreting (judicial) law, so that one body does not have absolute power. It also provides a system of checks and balances on the power of the government. The power and responsibilities of each body is outlined in the first 3 chapters of the Constitution (s1-s80), with Parliament Chapter 1, Executive (chapter 2) and Judicial (chapter 3).

Explain the role of the Governor-General

The Governor-General (GG) is the Crown’s representative and is constitutionally the head of the Executive Government, but in practice acts on the advice of the Prime Minister. The GG is also the Commander-in-Chief of the Australian Defence Force. The GG can appoint a Prime Minister if an election has an unclear outcome dismiss a Prime Minister, call a double dissolution election, assent to bills and swear in ministers, among other things..

Explain the Doctrine of Terra Nullius and how it applied to Australia.

The Doctrine of Terra Nullius states that a country could take possession of another country which was “vacant” and even if the land was occupied, it could be claimed if the original occupants were not “cultivating” the land. Terra Nullius is the legal principle the First Fleet applied when they took possession of Australia in 1788, as the British idea of cultivating the land was building houses and creating farms, which was not how the Aboriginal People were living. The Doctrine of Terra Nullius was overturned by the High Court in 1992, when native title was recognised.

Analyse and evaluate the significance of the Constitution in allowing the Commonwealth Govt to implement policies and laws in relation to Indigenous Australians.

-Constitution currently contains no protections against racial discrimination and the Parliament is capable of suspending existing statutory protections.
-The protections under Racial Discrimination Act 1975 (Cth)– the federal legislation designed to ensure equality of treatment of all people regardless of their race, have been removed on three occasions: each time it has involved Aboriginal and Torres Strait Islander issues.
- S51(xxvi) of the Constitution is often referred to as the “Race Power Laws” and has been evoked 3 times whereby it has discriminated against Indigenous Australians. One of the worst instances of this was the Stolen Generation. Therefore, we need to either:

· Amend s51(xxvi) so that negative discrimination can not occur

· Embed the RDA within the Constitution in order to not allow unfair decisions to be made for Indigenous Australians.

· the Preamble needs to be amended to include reference to our First People as the Preamble sets the tone for the rest of the Constitution.

Evaluate whether a Minority Government is positive or damaging to Australian society.

In Australia’s system of representative government, governments are formed from elected members of the House of Representatives. A Minority Govt is formed when no clear majority has been achieved.

provide egs and also reference recent Minority Govt (eg Abbot Govt).

-There is a lacking of an outright majority of seats in the parliament and the govt depends for its survival on the support of other political parties – usually the minor parties such as PH’s One Nation and these minor parties are said to hold the BALANCE OF POWER.
-In order to govern, the minority govt must maintain the support of these other members of the parliament to maintain govt. This provides another check on the executive arm of the parliament and thus govt

However, as a minority government does have to make deals with independents and minorities to get legislation through parliament, this means with more people looking over proposed laws, there is more room for errors or corruption to be detected. This means that the laws which are passed and circulated in Australian society are more rounded and better for the majority of citizens, as well as minorities, because independents and minorities in parliament have been able to look over proposed legislation and either refine the legislation, give it their support, or block it from passing through parliament. These checks and balances which a minority government provides is essential in having an uncorrupted parliament, which reflects the beliefs of the Australian people.

Define Representative Government and evaluate why it is such an important principle. You will need to consider some of the limitations in achieving a Representative Govt.

In democratic countries, the citizens vote for other citizens to represent them in parliament. These representatives become members of parliament or senators and they represent the voters in their electorates or states. In Australia, is reflected in the 3 levels of govt, and authority is shared between them. As a democracy, Australia’s representative government is a very important principle, as it is designed to ensure that the parliament

reflects the members of society, meaning that varying voices, opinions and belief are incorporated in a democratic way.


· 2 party system

· Pre-selection process – means that the party controls who runs for parliament and they may not be representative of the people.

· Gender imbalance in both govt and parliament

· A lack of representation in both govt and parliament of Indigenous Australians