Australian Government and Legal System: Key Principles and Cases

The Rule of Law

an overarching democratic principle which ensures that society is governed by laws, which ensures that no person is above the law, including the law-makers themselves.

Who was Marcus Einfeld?

A superior federal court judge.

What crime did Marcus Einfeld commit in 2006?

Perjury and making a false statement under oath.

What was the sentence given to Marcus Einfeld for his crime?

3 years in jail.

The separation of powers

the political principal that ensures a separation of government power into the legislative, executive, and judiciary. this is to ensure that checks and balances exist, to prevent the concentration of power.

Legislative branch

refers to the commonwealth parliament, which is made up of the house of representatives, the senate, and the governor general. the legislature's role is to make and amend laws.

Executive branch

the executive or the government refers to the party/parties that win an absolute majority in the house of representatives. the prime minister is the leader and them and their cabinet have the ability to administer the laws that govern the people

Judicial branch

refers to the High Court and other federal courts, who have the ability to interpret the constitution and the constitutionality of laws, if they are challenged

Who is NZYQ?

NZYQ is a Myanmar born, Rohingya man who arrived in Australia in 2012.

What crime was NZYQ charged with in 2015?

NZYQ was charged with raping a 10-year-old.

When was NZYQ released from prison?

NZYQ was released in 2018.

What happened to NZYQ immediately after his release in 2018?

He was instantly detained on visa grounds.

What was the prospect for NZYQ's removal from Australia?

There was no real prospect for his removal in the reasonable foreseeable future.

What constitutional argument did NZYQ make regarding his detention?

NZYQ argued that his indefinite detention contravened Chapter 3 of the Constitution.

What was the High Court of Australia's decision regarding NZYQ's detention?

The HCA unanimously decided that NZYQ's detention was not necessary for a non-punitive purpose and was illegal.

SOP upheld:

the judicary has the power to interpret the constitution (shown through NZYQ - stopping unlawful executive action, and Roach - the power to check the validity of laws). S.72 (ii) of the constitution - High court justices cannot be removed excpet by the GG with the parliament, if proved misbehaviour or incapacity.

SOP undermined

S.72 (i) high court justiced will be appointed by GG 'in council' with the PM + cabinet - has the potential for bias. Responsible government - the executive is drawn from and accountable to the pariament, the legislative and executive is fused, mandatory sentencing overrides judical independent discretion.

federalism

a system of government where law making power is shared between one central government, and two or more regional (state) governments.

unitary system

a system of government where law making power is concentrated in one central government.

division of powers

the written constitution expresses and enumerates the powers of the central and regional governments

exclusive powers

legislative and financial powers expressed in the constitution that are held solely by the commonwealth pariament. e.g. s.114, raising an armed force, s.115, coining money, s.90, customs and excise duties.

concurrent powers

legislative and financial powers that are expressed in the constitution that are shared by both the commonwealth and state parliaments. e.g. s.51 (ii) taxation or s.51 (xxi) marriage

residual powers

legislative and financial powers that are not expressed or enumerated in the constitution and therefore are exercised solely by the state parliaments such as healthcare, education, criminal laws.

coordinate/dual federalism

the intended system of federalism by the writers of the constitution, the commonwealth and states would have sovereignty to enact legislation to govern their respective jurisdictions

coercive federalsim

the commonwealth began to 'intrude' into areas of concurrent powers, and in some instances residual powers,s to ensure uniformity in legilsation at the expense of the states sovereignty

cooperative federalism

a more recent application of the federal system where states and the commonwealth will legislate together to ensure uniformity on issues through the voluntary passing of legislation in residual areas of powers

What section of the Australian Constitution states that marriage is a concurrent power?

Section 51 (xxi)

How is marriage defined in Section 51 (xxi) of the Australian Constitution?

Marriage is a union between a man and a woman to the exclusion of all others.

What legislation did the ACT pass in 2013 regarding marriage?

The ACT passed legislation allowing marriage between two people, regardless of gender.

What was the outcome of the Commonwealth's challenge to the ACT's marriage legislation?

The ACT's legislation was struck down.

STRUCTURE: definition

definition + example/explanation

STRUCTURE: distinguish between...

define terms + explain a difference without repeating definitions

STRUCTURE: disucss 1 argument for/against OR disucss the extent

define term + how been upheld/undermined OR extent upheld + examples + explanation + importance

s.72 ii

High court justices cannot be removed, except by the governor general with the parliament. if proved misbehaviour or incapacity

Responsible government

the convention governing the formation of the government in the Westminster system in which the executive is drawn from, and accountable to, the parliament

s.72 i

High court justices will be appointed by the GG 'in council' with the the Prime Minister and cabinet, meaning there is a potential for bias. overall section 72 creates judical independence.

chp 3

vests the High Court of Australia as the exclusive judicial function of punishing criminal guilt

Who is Al Kateb?

A Palestinian stateless person who arrived in Australia in 2000.

Why was Al Kateb's visa declined?

He was deemed stateless.

What did the High Court majority decide regarding the indefinite detention of a stateless person?

It was lawful under the Migration Act 1958.

What precedent did the Al Kateb case set?

It allowed for indefinite detention to happen for 20 years.

s.109

in areas of concurrently held powers, if a state passes a law in an area that the commonwealth has also passed a law in and they have an inconsistency, the commonwealth law will always prevail to the extent of the inconsistency

s.2

A governor general appointed by the queen shall be her majesty's representative in the commonwealth and shall have and may exercise in the commonwealth during the queens pleasure

s.32

the governor general has the power to call for elections

s.58

Governor general has the power to grant royal assent

s.57

double dissolution election - GG may dissolve the HOR and the sentae simultaneuously

s.64

Governor general can appoint cabinet on advice of the Prime minister

s.68

governor eneral is the commander of armed forces

s.72 (i)

governor general appoints high court judges on the advice of the Prime minister

Westminster conventions

unwritten rules that govern the operation of australia's political and legal system

responsible government

the convention that the executive is drawn from and accountable to the parliament

individual minesterial responsibility (IMR)

ministers of the executive are responsible for the public portfolio e.g defence, health and immigration, as well as their personal conduct. if they fail to uphold these values they may be censured by the parliament and if successful they should resign as a minister to the backbench

collective ministerial responsibility (CMR)

the government is answerable to the parliament and if the HOR loses trust in the government they may vote on a motion of no confidence, if successful they must resign.

democracy

a system of government which is based on popular sovereignty, where citizens have the right to vote for how they will be governed

representative democracy

a form of government where the people are sovereign but are represented in parliament by an elected member who has law making power delegated to them by the electorate.

liberal democracy

a system of government based on popular sovereignty, and the protection of individual rights, especially the protection of minority groups

direct democracy

a form of democracy where the people directly participate in their own government, e.g having the power to vote on laws/constitution

republic

a system of government where the head of state is an elected position, such as the president e.g USA

constitutional monarchy

a system of government where the head of state is an inherited position, with powers limited by a written constitution and unwritten constitutional conventions.

constitionalism

government power is limited by