Politics and Law Exam Study 1

Separation of powers

A political principle which provides for political power being split between the three arms of government (legislative, executive and judiciary.) It allows for checks and balances on government operations and facilitates the upholding of the rule of law.

Westminster conventions

Political traditions derived from England’s Westminster system of government. The conventions aren’t legally binding but are generally accepted as aspects of government function. For example, the Prime Minister is a Westminster Convention

Legislature

The arm of government responsible for representing the people, through debating public issues and proposing and passing legislation (enforceable law.) Australia’s legislature is composed of the House of Representatives and Senate.

Judiciary

The body of government tasked with interpreting and applying laws passed by Parliament, while also creating common law through past judicial decisions.

Executive government

The branch of government composed of the leaders of government (the Prime Minister and their ministers.) The executive also includes the Governor-General.

Decline of Parliament thesis

A political theory that suggests Australia’s modern Parliament fails to uphold its theoretical functions, namely, to represent the people and be a responsible legislative house.

Cabinet

A small group of the executive government which control the government’s agenda and policies.

Federalism

The division of political power between at least two levels of government, typically a central, federal government and state governments.

Governor-General

The Constitutionally based political representative who theoretically heads the executive government, but in reality, is a figure head for the British Crown. Every law passed by Parliament requires the Governor-General’s consent

Constitutionalism

A political principle that provides for checks on government power through the imposition of a body of rules which direct government functions. A ‘constitution’ is a legally binding document which facilitates transparency between government and the people and provides for basic civil and political rights.

High Court of Australia

The pinnacle of Australia’s court system. The High Court is the final place for legal appeals to be heard and is where constitutional-based legal battles occur.

Human Rights

Basic liberties and freedoms afforded to and enjoyed by all citizens irrespective of any discriminating factors.

Mandate

‘Political instruments’ which governments’ wield to justify political decisions.

Division of powers

The essence of federalism, where political power is allocated to differing levels of government (ranging from Federal → local govt).

EXECUTIVE

Composed of ‘constitutional executive’ and ‘real executive.’

Constitutional executive

GG – a ‘figurehead’ for political democracy

‘Real executive’

Prime Minister and Cabinet, defined by Westminster convention

Executive

Fused with legislative (Govt is formed in the HOR)

JUDICIARY

Operates within a ‘court hierarchy’ (level of jurisdictions across states and territories.)

Judiciary

Completely independent of the legislative and executive arm of government

Judiciary

Operates under the ‘rule of law’ principle

Judiciary

High Court deals with constitutional disputes and issues

LEGISLATURE

Bicameral legislature – composed of two law-making houses:

The House of Representatives

People’s house and is home to the government of the day.

Senate

The state’s house and is half the size of the House of Representatives

Legislature

Fused with the executive arm of government

Legislature

Functions: legislate, represent, scrutinize the government and act as a responsible Parliament

EXECUTIVE EXAMPLE

Section 61 of Constitution (executive power.)

EXECUTIVE EXAMPLE

Governor-General ‘1975 Crisis’.

EXECUTIVE EXAMPLE

Cabinet solidarity and secrecy.

EXECUTIVE EXAMPLE

The Turnbull leadership spill.

JUDICIARY EXAMPLE

Section 71 of Constitution (Judicial power and the High Court.)

JUDICIARY EXAMPLE

Justice Marcus Einfeld (Upholding of the rule of law.)

JUDICIARY EXAMPLE

Citizenship crisis of 2017

JUDICIARY EXAMPLE

The Williams decisions (Judicial review.)

LEGISLATURE EXAMPLE

Section 53 of Constitution (co-equal lawmaking powers of Senate and House of Representatives.)

LEGISLATURE EXAMPLE

Parliamentary Privileges Committee

LEGISLATURE EXAMPLE

Matters of public importance

LEGISLATURE EXAMPLE

2016 Senate Electoral Amendment Act.

THE GOVERNOR-GENERAL

The GG is the political representative of the Queen – vested with power under s 61 of the Commonwealth Constitution

Reserve power

Powers explicitly mentioned in the Constitution and only exercisable by the person who holds the position of GG

Express power

Powers of GG that are exercisable on behalf of the Parliament

The GG’s actual power

Effectively diminished through the prevalence of the ‘real executive,’ who hold the majority of seats in the HOR

In essence, the GG is

A ‘figurehead’ for democratic operations in Australia

Powers exercisable by the GG

Powers exercisable by the GG have been acquired by the ‘real executive’ (i.e. government itself), via Westminster conventions

Westminster conventions govern that

The GG must act on behalf of the real executive and make decisions accordingly

Primarily, the GG’s

Key roles concern either ceremonial or non-ceremonial activities

GG accountability

Sits in a ‘grey area,’ as there are little Constitutional or statutory provisions which provide stringent measures to hold the GG responsible

GG’s are

Expected to act with dignity in their position of office, and must uphold the traditional Australian values

‘1975 Crisis’

The Whitlam Government’s dismissal by then GG, Sir John Kerr, highlight the inconsistencies and grand extent of the powers exercisable by appointed GG’s in Australia

‘The Hollingworth Affair’

Resulting in the resignation of then GG, Peter Hollingworth, this ‘affair’ of sorts indicates issues prevalent in the appointment process of GG’s. Hollingworth had been appointed to office despite incurring leadership failures in respect of child sexual abuse while employed as an Anglican Archbishop

FEDERALISM

At the core of federalism lies the process of division of powers – that is allocated between at least two levels of government (generally Federal and State, but also local)

Federalism

Serves the purpose of creating a unified system of government that can provide society with national defense, financial viability and legal consistency

Cooperative federalism

States and Commonwealth operate in harmony with one another, with decisions and power balanced accordingly

Coordinate federalism

Relative autonomous relationship between States and Commonwealth, with both exercising their powers with little to no fuss or controversy created by the other

Coercive federalism

States are affixed to and effectively played as ‘puppets’ by the Commonwealth. Financial decisions of the States are influenced by the Commonwealth through the lure of ‘tied grants.’

Vertical Fiscal Imbalance

State financial dependence on the Commonwealth deriving from uniform tax laws, preventing the States for imposing income taxes to collect revenue. The VFI drives a wedge between States and the Commonwealth, and often allows the Commonwealth to enjoy the ability to influence State fiscal spending.

Horizontal Fiscal Equalisation

‘Closing the fiscal gap,’ courtesy of the GST reforms and COAG negotiations, the States have began to get a bigger slice of revenue previously owned and solely operated by the Commonwealth.

s96 (grants power

Commonwealth can provide States money on ‘terms they deem fit’

COAG

Council of Australian Governments

GST

Goods and Services Tax, introduced by the Howard Government

THE REAL EXECUTIVE

Unlike the GG, the ‘real executive’ is highly operational and vital to a healthy functioning Legislature

The real executive

Comprised of the PM, Cabinet and Ministry

The real executive

The party with the majority of seats (at least 50%+1) in the HOR becomes the real executive in action

The legislative agenda

The legislative agenda is determined by the real executive

Cabinet

Cabinet is the backbone of the real executive – they formulate policies, engage in political discussions and try to reflect the ‘national interest’

Solidarity

Cabinet ministers must stand by and publicly agree with a political decision that has been supported by the majority

Secrecy

Cabinet discussions are kept under ‘lock and key’ for a period of 30 years and ministers must not leak any discussions which are classified as ‘confidential’

The ‘Cabinet Handbook’

Details the roles, responsibilities, powers and processes Cabinet is bound by and can be accessed via the APH website

THE LAWMAKING PROCESS

Lawmaking is a complex, and at times, longwinded process – involving the GG, Parliament and in some cases Judicial intervention

Pressure Groups

Organisations seeking to influence lawmaking in Australia through external means – they represent causes, grassroots issues, sectional or cross-sectional societal groups

Political Parties

The backbone of Australian politics are political parties – these are organisations composed of individuals elected to the Legislature, who seek to represent the public and make an impact on the machinery of government itself

Individuals

A person who seeks to represent their interests of others, either through running as an independent candidate at an election or through indirect means such as campaigning for a political cause

Collective and individual ministerial responsibility

The principles of CRM and IMR require ministers to adhere to a certain level of ‘ministerial conduct’ or face the threat of resignation or Parliamentary expulsion.

Senate Estimates

The chief mechanism for scrutinising government expenditure, ‘Estimates’ comprises of a committee of Parliamentarians representing a plethora of political parties. Certainly, Estimates is effective the committee is afforded access to every fiscal transaction made by government, allowing for a transparent review process to take place.

Auditor-General and Administrative Appeals Tribunal

These aspects of accountability relate to the administrative branch of government itself. In effect, they are designed to hold the public service to account and ensure government decisions are made with integrity, efficiency and consistency.

Judicial review

The key judicial gateway providing accountability to the executive. In effect, courts have the power to assess executive decision making and where deemed appropriate, reverse it.

The Appeals process

Court decisions can be review internally through the ‘higher’ courts giving their own interpretation in respect of the given case/s. The HCA is the highest jurisdiction in Australia and the last place where appeals can be heard.

Parliamentary scrutiny and legislation

Statutory law is supreme to common law, so Parliament always has the capacity to abrogate the common law as it sees fit.

Censure and removal of Judges

Judges appointed to the HCA, per s 72 of the Constitution, can be removed if its found that they have grossly misbehaved or are incapacitated to hold the respective bench position. Further, Judges are mandated to retire at 70 years of age, after the 1975 Referendum changed the retirement age from 75 to 70.

Public confidence in the courts

Engagement by the public in the judicial process is enhanced by the jury system as well as ‘open courts’ allowing most people to access the justice system as they deem fit.

Removal process

In practice, the only way the GG can be dismissed is by the Queen – acting on advice of the PM. Such a situation, by-where the GG is constitutionally dismissed, has never occurred in Australia.

The Hollingworth Affair

Hollingworth ultimately succumbed to the court of public opinion, with close to 73% voting in favour of his dismissal in the opinion polls. Hollingworth ultimately resigned before he could be formally dismissed.

A lack of accountability – Sir John Kerr

The ‘1975 Crisis’ sours the extent to which the GG can be said to be held to account. Sir John Kerr, while exercising his power with practical correctness, effectively ignored the PM’s direction in refusing to call a half-Senate election. This situation more so reflects the need for Australia’s political system to redraw the powers of the GG and the extent to which they can bend the rules of Westminster conventions.

Elections for the House of Representatives and Senate

The very positions enjoyed by Parliamentarians are won or lost every 3 years for HOR and 6 years for the Senate. Voters make informed judgements, and therefore Parliamentarians must carryout their jobs with good faith to give themselves the greatest chance of getting re-elected.

Privileges committee

Parliamentary privilege is afforded to all Parliamentarians, meaning MP’s are exempt from having criminal or civil legal proceedings brought against them for comments made in chambers. The PC is designed to ensure MP’s don’t abuse the aforementioned privilege. The committee deliberates over allegations of privilege abuse and can call for certain punishments to handed out to MP’s where abuse is found in the positive – such as expulsion or temporary expulsion from chambers.

Human rights

Liberties and freedoms enjoyed by all individuals

Civil rights

freedoms associated with all individuals irrespective of ‘discriminatory factors’ such as age, race, gender or sexual orientation.

Political rights

Refer to the abilities provided in the Political Process, such as the right to vote.

USA RIGHTS PROTECTION

The USA has a constitutional mechanism of rights protection – the Constitutional Bill of Rights

The Constitutional Bill of Rights

Rights contained in the CBR include freedom of the press, right to assembly and right to bear arms