Politics and Law Exam U1

Evidence

Information or material presented to support or prove a point in a legal context.

Delegated Representation

The act of representing constituents by elected officials.

Biosecurity Act 2015 (Cth)

Legislation that enables the Governor

Civil Case

A legal case involving a dispute between individuals or organizations.

Thoms v Commonwealth 2020

A significant legal case pertaining to civil rights in Australia.

Mabo v Queensland No. 2 (1992)

Landmark case recognizing native title rights.

Native Title Act 1993 (Cth)

Legislation that acknowledges and protects native title rights.

Wik v Queensland (1996)

A case concerning native title and land rights in Australia.

Home Affairs Legislation Amendment Act 2019

Legislation impacting home affairs policies.

Marriage Amendment Act 2004

Defined marriage as between a "man and a woman."

Marriage Amendment Bill 2017

Passed to redefine marriage as "between two people."

Criminal Case

A legal case involving the government prosecuting an individual for a crime.

Statutory

Relating to laws enacted by a legislative body.

2010 Gillard Government

Passed NDIS legislation providing support for disabled individuals.

Abbott Government

Attempted to introduce a $7 GP copayment (failed).

Section 83 Constitution

States that money withdrawn by Treasury must be authorized by an appropriation bill.

Separation of Powers

A doctrine that divides government powers into distinct branches.

Section 64

Requires ministers to be members of Parliament; otherwise, they lose their position after three months.

Precedents

Previous legal decisions that influence future cases.

Eg Donoghue v Stevenson (1932)

Established duty of care; existing precedent deemed unjust.

Mabo v Qld (no. 2) (1992)

Overturned terra nullius; recognized native title rights.

Wilson v Bauder Media Pty Ltd (2017 and 2018)

Defamation case that established new precedent on damages awarded.

Contemporary Issue / Bill Procedure

Current legal and legislative matters under discussion.

The Religious Discrimination Bill 2022

Proposed legislation concerning religious discrimination.

Standing Orders

Rules governing the operations of each house of Parliament.

Speaker (HoR)

Presiding officer responsible for maintaining the chamber's functioning.

Crossbench

A bench occupied by members independent of political parties.

Political Executive

Elected officials responsible for high

Administrative Executive

Public servants implementing policies set by the political executive.

Australian Federalism since Federation

System that allows state and local governance with strengths and weaknesses.

Separation of Powers

Crucial mechanism to prevent abuse of power in government functions.

Legislate

The process of making laws by Parliament.

House of Representatives

Comprises 151 members elected by citizens.

Senate

Comprises 76 members representing states' interests.

Example: Sex Discrimination Act 1984

Protects against unfair treatment.

Executive

Enforces laws made by the legislature.

Ministers

Responsible for specific government areas; their sectors are called portfolios.

Judiciary

Courts that interpret laws and resolve disputes.

Judges

Have the authority to make binding legal decisions.

Court Hierarchy

Ranks courts from lower to higher based on case complexity.

Judges' dismissal

Can only occur via Parliament for proven misbehavior or incapacity.

SOP in Non

Democratic Legal Systems

Parliamentary Sovereignty

Statutes have supremacy over common law.

Judicial Independence

Ensures judges are free from external influence, protected by s72 of the Constitution.

Judicial Power

The authority of courts to interpret and apply the law.

Key Components

Include interpreting laws, adjudicating disputes, and ensuring justice.

Representative Democracy

Government where people elect representatives.

Delegate Representation

MPs represent constituents' concerns, prioritizing their views.

Trustee Representation

MPs act in the best interests of their constituents.

Model of Representation

Australian Senate reflects both US and British representation systems.

Decline of Parliament's Representative Functions

Political parties dominate, influencing parliamentary dynamics.

Home Affairs Legislation Amendment Act 2019

Addresses issues related to asylum seekers and refugees.

Federalism

The act of having a system of government in which the powers and responsibilities of government are divided between national and two or more regional governments. OR having a government system where the powers and duties are split between a central government and smaller governments representing regions or states. Can be split in various ways.

Division of powers

legislative

Residual powers allow people to make laws in regards to matters within the state concerning schools, roads, hospitals, and more. Section 107

Concurrent power joins the federal (Commonwealth) and state government to make laws; taxation is an example of this. Section 51

US influences Australian P+L system

Written constitution: fundamental law that provides clear and structured governance.

Federalism: Australia divides powers between commonwealth and states, in the same way as the US. Concurrent, residual, exclusive.

Senate: represents states equally, house of review, check on lower house. Senate rotation.

Constitutional courts: High Court of Australia influenced by the US Supreme Court as a court for constitutional interpretation and final appeals.

Statute law

One of two types of ordinary law, known as Acts of Parliament.

Components of creation: Lower house, Upper house, Crown.

Acts of parliament passed to achieve particular aims: Implementing executive policy, Spending of government, Consolidating laws, Amending, Abolishing, Responding to court decisions.

Act of parliament two sources of authority: Democratic authority, Constitutional authority.

Marriage Amendment Act 2004 defined marriage as between a “man and a woman.” Marriage Amendment Bill 2017 passed redefining marriage as “between two people.”

Statutory law always overrides common law.

Implement policy proposed by the executive

Governments have agendas and present policies during the lead

2010 Gillard government passing NDIS legislation

2018 Coalition.

Authorize spending by the Executive Branch

Major role of parliament is to scrutinise the government spending of public money (holding accountable).

Section 83 Constitution: any money withdrawn by Treasury must be authorized under law by an appropriation bill.

Money bills can only be introduced into the House of Representatives and every year government releases the annual budget.

Turnbull government changed income taxes in 2018.

Abbott government attempted to introduce $7 GP copayment (failed).

Amending/repealing existing statutes

2013 repeal of carbon tax legislation by coalition government.

Amending Marriage Act 1961 by passing the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

To consolidate law by combining several old statutes into 1 to simplify or update the law.

4 major considerations since federation (1911, 1935, 1959, 1979).

Changes to social welfare legislation post the 1946 social welfare referendum.

Respond to court decisions and judge

made common law:

Mabo (1992) High Court decision created Native Title Act 1993.

Roach (2007) High Court decision, repealing the Commonwealth Electoral Act 1913.

Types: Constitutional law, Statute law, Common law, Delegated legislation.

Delegated legislation

refers to the regulations that are created by an individual or body under powers granted to them by an Act of Parliament, known as the primary act.

Delegated legislation is subordinate legislation that allows for a more detailed and flexible lawmaking within the framework established by the primary act, enabling specific, technical, or local issues to be addressed efficiently.

Subordinate authority

part of the executive branch that directly answers to parliament. If power is abused, can be limited or taken away by parliament.

Parliament can remove powers, etc.

Issues with Delegated Legislation

Argued that it doesn't reflect the will and beliefs of citizens.

Parliament must remain the primary lawmaker = representative.

Professor Denise Meyerson quote: Delegated legislation can undermine the SOP doctrine, crucial for political liberty, by allowing executive officials to legislate, interpret, and execute laws, potentially placing themselves above the law and affecting individual rights, freedoms, and privileges.

How is power delegated by parliament?

Through statutory law: acts of parliament that establish these subordinate authorities will include delegated power.

Power has to be carefully spelled out and defined, setting a clear limit.

Australian Government Home affairs.

Why delegate power?

One reason is simple efficiency; there is plenty of lawmaking that is routine enough that parliament doing it would be a waste of time.

Respond to emergency situations, such as ASIO's ability to conduct searches and arrests in response to a perceived terrorist threat.

How does subordinate authorities create new laws?

Can create new regulations and ordinances.

Regulations give these subordinate authorities the power to legislate without going through parliament.

Example: Biosecurity Act 2015 (Cth) Act authorises the executive branch, the director of biosecurity, and the director of human biosecurity, to create detailed rules and regulations to manage biosecurity risks.

Biosecurity regulations were created by the governor

general covering disease control, import/export rules, and risk management.

How does parliament limit executive power?

2 Important functions: Passing Acts of Parliament and Supervising the Executive branch of government.