SOL Rep and responsible gvt + judicial independence

features of representative government

• one vote = one value and secret ballot

• regular elections

• payment of MPs parliamentary privilege

• universal franchise

• rule of law

representative gvt definition

model of democracy where citizens elect reps to parliament to make laws on their behalf. this can take two forms: direct democracy, where every person is involved in law-making (this is not practical) and indirect democracy, where power is vested in reps.

3 arms of federal executive power

• codified

• convention of gvt

• general admission

codified arm

refers to the gg. s61 states that exec power vested in the monarch is repped by the GG, S62 states that FEC is to advise the GG (of which the members are appointed by the GG)

codified constitutional rules

GG exercises power and accepts advice from FEC, ministers are appointed/dismissed by GG, ministers are heads of gvt departments and must be MPs, civil servants are appointed by GG delegates

convention of government arm

S62 suggests GG power, however, this is exercised by numerous unwritten rules or conventions which determine how gvt is formed and how they exercise their power. conventions: exec gvt is formed from majority LH party, PM is sworn in as head of gvt by GG because the majority party has chosen them as leader, GG swears in such members of parliament as PM advises, the GG exercises power on the advice of those ministers at FEC

general admission arm

refers to gvt departments which are commissions or agencies that enforce specific legislation, i.e. centrelink controls welfare payments.

members of general admission arm

run by ministers who form a link between parliament and the CEO of the department, CEO is an employee who runs the department like a business, c-suite refers to the employees of that department

number of ministers in fed gvt

30

number of ministers in SA gvt

14

cabinet composition

cabinet (exec gvt) gvt holds real political power, formed from the majority party and headed by the PM (cth) premier (state) or chief minister (territory). the other members are ministers

fed gvt main roles

• signing international conventions at UN and treaties with other nations

• making regulations via delegated power from enabling acts

• deciding gvt policies e.g. immigration numbers

• drafting bills for parliament

• administering statutes passed by parliament i.e. accept responsibility for gvt departments and statutory authorities

• appointing judges and heads of departments and statutory authorities

1st stage of forming fed gvt

general election for house of reps

2nd stage of forming fed gvt

party gains majority in LH and chooses leader and members of cabinet

3rd stage of forming fed gvt

GG swears in PM and ministers

4th stage of forming fed gvt

PM allocates portfolio to ministers

5th stage of forming fed gvt

cabinet meets regularly and in private to form gvt policy

6th stage of forming fed gvt

cabinet members also form FEC which meets with GG to approve cabinet decisions- acting on advice (convention of responsible gvt)

rep gvt element: rule of law definition

reps are able to stand for election and vote on an equal basis, as well as law-making processes having strict rules to ensure the supremacy of the const. and individual rights are observed

responsible gvt definition

a system of parliamentary democracy based on the british westminster system. centred around the concept that an elected legislative body (parliament) will make laws for the people while an unelected body (government) will perform an executive function in the administration of these laws

US system of responsible gvt

president is directly elected by people, rather than the party. this means they are directly responsible to the people, while they do not sit in congress either

elements of responsible gvt

• accountability

• exercise of executive power

• relationship between legislature and executive

• ministers must be MPs

• conventions

misc conventions of responsible gvt

PM is head of gvt and must sit in LH to right of speaker, speaker has unlimited access to GG to identify which party leader has confidence of house, ministers can sit in both houses on front benches, HCA is independent therefore cannot give legal advice to gvt

responsible gvt convention that PM is leader of gvt as long as 3 conditions exist:

• they have the confidence of house (command majority in LH)

• they can guarantee passage of supply

• they act in accordance with constitution

chain of accountability definition

a complex web of checks and balances that ensures no institution of government oversteps its powers or exercises arbitrary use of power

chain of accountability example

executive >accountable during question time to the legislature> accountable to the people during elections

how gvt is held accountable to electorates

ministers must be MPs so citizens have acees (indirect democracy), ministers must answer questions about their policies and department from the opposition, and minister resigns if they lose the confidence of parlt. or misleads it

judicial independence definition

judges must be free from any interference, intimidation or external influence when deciding cases.they must only consider the evidence and legal submissions before them, including judicial guidance and precedents

importance of judicial independence

crucial in a democratic society as the judge must be free from interference or intimidation. this is achieved by the judge not performing a legislative or exec function. judicial independence forms the cornerstone of the separation of powers and is vital if courts want the confidence of society so that cases are decided on merit free from influence

crimes act 1914 (cth)

outlines the offences judges may be charged with to prove misbehavior

stages to making case law

• judicial pronouncement

• statutory interpretation

making case law: judicial pronouncement definition

the creation or extension of common law principles where no current law exists in that area to easily apply to the circumstances. judges will use past precedent (decisions) to guide them in their decision making. if no applicable precedent exists, then judges may make brand new case law

making case law: statutory interpretation definition

refers to the process by which judges give meaning to words or phrases in legislation in order to solve a legal dispute. this may create new legal principles

canons of construction

a form of case law guidance in statutory interpretation. rules created by judges to guide them where there are no other exiting rules in that context. this allows them to make assumptions such as; the parliament would not deliberately take away someones rights and common sense to ensure the intentions of parliament are upheld

golden rule

a form of case law guidance in statutory interpretation. allows judges to avoid using the literal meaning if it may yield an absurd or unjust outcome

ejusdem generis rule

a form of case law guidance in statutory interpretation. specific terms followed by a more general term e.g. house, room or other like place, a shed may be considered to be included in this list by interpretation

issues and questions of fact

an element of a judges decision. questions that help determine what happened in the context of the case before the court. help the court to arrive at the truth of what actually occurred with regard to the allegations made. in a civil case, the judge is the sole determiner of fact, whereas in a criminal case a jury may be used to determine fact, which is answered with evidence provided by witnesses

issues and questions of law

an element of a judge’s decision. whether the law was applied correctly for the circumstances and if this application was valid- refers to interpretation of statutes and application of case law- question of law is decided by a judge through their application of precedent or creation of law

doctrine of precedent definition

states that decisions made in previous judgements of courts must be followed in future cases with similar fact situations to ensure the same decision is reached. this ensures consistency, fairness and predictability in the legal system while upholding individual human and legal rights

doctrine of precedent practical application

gives practical application to the principle of stare decisis -to stand by ones decision

disapproval

a method of departing from precedent. general disapproval occurs when a lower court disapproves of precedent set in a higher court but still has to follow it as it is binding, e.g. SGIC v Trigwell (1978) full HCA disapproved of searle v Wallbank precedent but still had to follow it as it was made in the house of lords

reversal.

form of departing from precedent. same case on appeal in a higher court may reverse the precedent used for the decision made in the court of original jurisdiction if deemed inappropriate considering issues and questions of fact and law e.g. wik 1996

important cases in case law:

• donoghue v stevenson (1932)

• grant v australian knitting mills (1936)

• Coffey v Jaensch

coeffy v Jaensch

doctrine of tort law and negligence was extended to include those who perceive the event's aftermath

grant v akm 1936

this case established 3 elements that must be present for negligence to be established: there was a duty of care owed by the defendant, this duty was breached, and damages were caused by this breach

donoghue v stevenson 1932

the decision (in the house of lords) had several components; firstly that negligence is separate and distinct in tort law, secondly that a contractual relationship does not have to be established for a duty of care and third that manufacturers owe this duty to consumers of their product. it was decided that reasonable care must be taken to avoid acts or ommissions that may be reasonably foreseen to cause harm to others

appellate jurisdiction

gives effect to judicial review. parties in a dispute have a legal right to ask an appellate court to review the decisions of a judge from a court of original jurisdiction. parties have the right to appeal to state appellate court, and by leave from full supreme court, to the HCA

original jurisdiction

refers to the principle of a democratic state to exercise power in an independent judiciary, and to hear and decide cases before appellate review

HCA judicial review in original jurisdiction

HCA interprets const. to determine whether parlt. acted ultra vires their powers of the const. HCA reviews legislative and executive power use and must decide if gvt or parlt. has exceeded its powers i.e. they are the 'guardians' of the constitution

doctrine of ultra vires

acts as a safeguard against unlawful and arbitrary power use by parliament which guarantees the appropriate application of the rule of law