UNIT 3 POLITICS AND LAW ATAR

legislature (AUS)

the branch of government which makes law by inititating, amending or abolishing statutes via the statutory process. may be unicameral or bicameral. created by chapter 1 of the constitution

executive (AUS)

the branch of government which carries out the law and makes policy on how law will be implemented. often referred to as the governmet. it is directly elected by the people in the washminster system. created by chapter 2 of the constitution, but governed by westminster convention

judicial (AUS)

the branch of government which adjudicates disputes by interpreting the laws and applying them to specific circumstances in cases heard in courts. an appointed, not elected, arm of government. created by chapter 3 of the constitution, which strictly separates it from the other branches.

federalism

a system of government in which sovereignty is geographically divided between one central and two or more regional government, each sovereign within their own sphere

decline of parliament thesis

the argument that the modern parliament is unable to perform its major roles because of the rise of disciplined political parties and the dominance of the executive over the lower house, the house in which it is formed and theoretically responsible. the argument is countered by the revival of parliament thesis

section 7

- senate to be composed of senators directly chosen by the people

- term limit of 6 years

- senators must be certified by the governo general

section 53

- laws appropriating revenue or moneys shall not originate in the senate

- the senate may not amend proposed laws imposing taxation

- other than this both chambers are to have equal power

executive powers vested

- gg

- pm

- cabinet

- wider ministry

constitutional/formal executive

refers to the queen, whose power is vested in the gg as per section 61 of the constitution. the gg holds significant power as outlined by the constitution, but in practice rarely exercises such power over parliament

political executive/real executive

comprised of the gg, pm and inner ministry/cabinet and the outer ministry (jnr. ministers). mostly responsible for the implementation of legislation

administrative executive

refers to the members of the public service who assist in the practical implementation of statute. comprised of gov. departments and statutory agencoes such as the Commonwealth Grants Commission, and assistant ministers

section 71

- the judicial power of the commonwealth is vested in a Federal Supreme Court, called the high court

- no less than 2 justices, and a chief justice

section 73

- appellate jurisdiction of the hc

- any decision made is final

section 75

- original jurisdiction

- matters arising under:

1. any treaty

2. other countries

3. the commonwealth is a party

4. between states

section 76

- additional original jurisdiction

- matters relating to the constitution, laws made by parliament, maritime, laws made between different states

jurisdiction

the area in which a court holds the power to make decisions regarding cases. the hc jurisdiction includes appellate, original and additional - 73, 75 and 76 respectively

court hierarchy

the process of structuring courts in order of importance, relating to their jurisdictions and areas of responsibility. the hc is considered the apex of the Australian court hierarchy

original jurisdiction

established by section 75, the original jurisdiction of the hc is inclusive of matters arising under any treaty, effecting representatives from other countries, or in which a writ of mandamus is sought etc.

appellate jurisdiction

established by section 73, appellate jurisdiction of the hc outlines that it is the highest level of appeals a case may reach, of which the decision reached is final

legislative (USA)

established in article 1, the legislative branch encompasses the USA's comgress - includive of both a senate and house of representatives (of which is bicameral in nature). the areas of legislative power are established in section 8, of which the senate is unable to initiate or amend money bills

executive (USA)

established under article 2 of the constitution, the executive is comprised of only the president who is directly elected via the electoral college voting model. the president is elected along with a vice president, who establishes a cabinet of secretaties presiding over departments - note that the cabinet is not a part of congress

judicial (USA)

established in article 3 of the constitution, the juducial power is vested in the supreme court and any subsequen federal courts congress may make. judicial power is vested in justices that are recommended by the executive, and confirmed by congress. judicial powers reside over powers of the president, and constitutional matters

USA v AUS constitution

both written, with the legislative, executive and judicial established in chapter/article 1, 2 and 3

USA v AUS head of state

president v the queen, w powers vested in the gg

USA v AUS head of government

president v pm

USA v AUS executive

USA: includes president, vice president and cabinet of which is not a part of congress. the president is directly elected along with the vice president

AUS: includes the formal, real and administrative executive. the real executive includes the pm, gg, inner and outer ministry. the ministry is part of the legislative, leading to an overlap in the separation of powers

USA v AUS legislature

USA: strong bicameral nature, composed of an upper and lower house wher the senate is unable to initiate money bills (like AUS)

AUS: strong bicameral nature. members of the executive are drawn from the legislature unline the USA, as per the westminster convention of responsible government

responsible government

the convention drawn from the westminster system in which the executive is drawn from and is responsible to parliament

USA v AUS judiciary

USA: judicial power vested in the supreme court and any other federally created courts. justices are appointed via congress, but nominated by the executive and thus is independent

AUS: vested in the hc and other federally created courts. supreme justices do not require confirmation from parliament, are appointed by the GG on pm's recomendation thus not independent

functions of parliament

- representative

- legislative

- responsibility

- debate

representative function in theory

- sec 7 and 24 require the senate and hor to be directly elected

- theoretical models of representation include:

1. delegate representation

2. trustee representation

delegate representation

a theoretical form of representation in which the elected representative simply reflects their electors' concerns and values in the parliament. the representative is a mouth piece

trustee representation

a theoretical form of representation in which the elected representative acts in their electors' best interests in the parliament. it grants autonomy to the representative.

legislative function in theory

- bicameral parliament is created, ensuring equal divisions of legislative powers of the upper house and lower house, bar acts relating to moneys

- the concurrent legislative powers of parliamnt are outlined in section 51

- parliament in theory is to be a place of scrutiny, diverse input, and allows statute to be initiated by any member

responsibility function in theory

- westminster convention of responsible government ensures that the executive is drawn form and accountable to parliament - convention enforces by section 64

section 64

ministers must be a member of the senate or hor in order to sit office

mechanisms ensuring responsibility of parliament in theory

1. gov. may only exist if holding a majority in the lower house - collective ministerial responsibility

2. individual ministers may be dismissed via censure motions/motions of no confidence - individual ministerial responsibility

3. question time allows for public scrutiny

4. scrutiny of gov. spending via analysis of the budget

collective ministerial responsibility

a westminster convention of responsible parliamentary government by which an entire executive government may be held accountable by the lower house

individual ministerial responsibility

a westminster convention of responsible parliamentary government by which a minister may be held to account by the lower house

debate function in theory

- parliamentary privilege ensures parliament is the ultimate forum of debate - individuals are free from implications such as civil torts of defamation

- debate occurs in a multitude of settings: question time, urgency motions, second reading debate

- parliamentary privilege committees regulate privilege - may sanction MPs for inappropriate behaviour

privilege committee example

- senator Bill Heffernan accused justice Michael KIrby for improper use of commonwealth cars to solicit male prostitiutes in 2002

- forces to appologise by Senate Standing Committe of Privileges

- removed from position of parliamentary secretary to cabinet

representative function in practice

- LIMITED IN APPLICATION

- voters tend to identify with political parties instead of MPs, thus digression from delegate and trustee models

- partisan representation model in practice

- increase in minor/indp. representation

- reduction in major party support

- senate has stronger representation - 6 year term limit prevents strong party discipline

representation in practice examples

- Antony Green says there has been a reduction in major party supprt from 1940s to 1990s, only 80% vote for major parties

- DECREASED PARTY DISCIPLINE: migration ammendment act 2009 only passed when lib senator Troeth voted against her party in favour of greens/ALP

- INCREASED MINORS/IND: gillard's minor gov. 2010, dependent on 4 indp and minorities

legislative function in practice

- LIMITED IN APPLICATION IN THE LOWER HOUSE due to executive dominance in legislative mechanisms (gags, guillotines and flood gating)

- house committees feature executive dominance as they mirror the composition of the lower house

- senate standing committees have greater scope to scrutinise legislation as lack exec. dominance

legislative function in practice example

- building and constriction in dustry bill 2013

- abbott/turnbull gagged to get act to pass through lower house

responsibility function in practice

- individual ministerial responsibility more likely to be upheld within upper house as lacks executive dominance

- censure motions more likely to be successful in lower house when initiated by opposition

- minority gov. may revive functions as increased reliance on minor parties/ indp who better represent their constituents views - less exec. dominance

debate function in practice

- debate may occur in party rooms away from the public therefore able to debate more freely

- overlaps w responsibility function as leadership spills ensure leaders are accountable to their members

- e.g. turnbull v abbott (54 - 44)

- debate limited in lower house due to exec. dominance

section 24

- nexus clause

- the hor must have double the members of the senate

censure motion example

- 2015 senator george brandis subject to censure motion (liberal)

- put forward by ALP penny wong

- censure motion due to brandis' harrassment of human rights commissoner jillian triggs

governor general

the representative of the monarch in australia. established by section 61 of the constitution and exercising the executive power of the commonwealth, formally vested in the queen. powers are bound by westminster unwritten constitutional conventions.

roles of the governor general

- constitutional: executive and legislative

- ceremonial

- non-ceremonial

constitutional role of the governor general

- legislative: refer to the power of the gg outlined in the constitution that relate to the formation of statute, and processes relating to statute. inc. section 57 double dissolution

- executive: refer to the powers of the gg enumerated in the constitution relating to the 'real' executive branch. inc. section 61 vesting the queens power in the gg

double dissolution example

turnbull asked sir peter cosgrove to call for a double dissolution after the australian building and construction commisson bill failed twice in 2016

powers of the governor general

- express: explicitly codified in the constitution - expressed on advice of the pm or EXCO, e.g. section 58 (royal assent)

- reserve: powers gg can exercise w or with out advice of pm. e.g. section 64 (dismissing a minister in the lower house)

section 62

- federal executive council must be compromised of the governor general and executive councilors

- included in the gg's executive constitutional roles

section 63

- gg must act on the advice of the EXCO

section 68

- gg is the formal comanding office of the Australian defence force

section 57

- gives gg right to dissolve both uper and lower house should a deadlock occur in parliament during three month period if bill failed twice

- part of legislative constitutional role

section 72

- the gg must only be the one to appoint and remove the justices of the hc

- justices must also receive fixed renumeration

1975 constitutional crisis

- whitlam elected 1972 of progressive policy platform: free tertiary education, medicare etc

- highly expensive, aus also experienced economic downturn

- two casual vacancies opened in senate: senator millner and senator murphy

- replaced w liberal members, no longer had majority in senate

- opposition able to block supply in upper house

- liberal hoped whitlam would be forced to call double dissolution (sec 57)

- whitlam asked for half senate election, sir john kerr did not comply

- kerr exercised power to dismiss minister as per sec 64

constitutional crisis

any event in which the normal operations of hte constitution and/or unwritten westminster conventions fail to resolve fundamentle issues of governance. the major constitutional crisis in Australia's history was the dismissal of the whitlm gov. the crisis occured due to conflict in black letter constitutional law and constitutional convention.

constitutional issues raised whitlam dismissal

1. gg holds too much power

2. reliance on conventions - only convention codified was the refilling of casual vacancies w ppl of the same party

3. republic v constitutional monarchy raised

circular accountability

refers to the situation where two parties each hold each other to account. this leads to failure to hold each part truly to account

casual vacancy

refers to when a seat in the senate becomes available due to the previous senator dying, no longer being a viable option, or due to position change

double dissolution

the process in which both the upper and lower house is dissolved by the gg acting on adivces of the pm by exercising power of section 57, due to deadlock of an act failing to pass twice within three months

royal assent

the process in which a bill becomes statute when the gg signs the act on behalf of the queen as per section 58

prime minister

pm is the leader of the political part that holds the majority of seats in the lower house. they are deemed the head of government, and are a member of both the executive and legislative branch

roles of the pm

1. head of cabinet: instruct cabinet meetinfs, being the final arbitrator of decisions and forming cabinet committees

2. head of government: final authoritive voice, guiding discussion and being key spokesperson for aus

3. personsible for advising the gg: appoint mps ans justices

sources of the prime minister's power

- leader of the majority part in the lower house: determines processes/procedures to control passage of legislation and debates

- chairperson of cabinet meetings: decide business and priority of gov.

- access to information: national agency securities, and department of PM and cabinet

- patronage: ability to punish/reward members

- determining election date: chose when pols in their favour

- public face of gov: strong performance in public = increased power, more likely to achieve support in marginalised seats when ppl like pm

prime minister patronage example

- turnbull promoted mp payne from minister of human services to minister of defence in 2015

limitations to prime minister's power

- personal mandate: no mandate as not directly elected - able to remove pm as not undemocratic

- lack of cabinet solidarity: may break cabinet secrecy to undermine pm in eyes of media

- political rivals in cabinet or the party: impinges on cabinet unity

- party constraints: in caucus/party room, able to remove their leader

- federalism: commonwealth unable to interfear w states' residual powers - constitutional limit

- the opposition: must hold gov/ministers to account, and present itself as a viable option

- media/polling: low polls decrease agency

- minority gov.: relies on minor parties/indp. they hold the power of balance and compromise pm's ability to retain power

limitations on prime minister's power examples

- scott morrison replaced peter dutton durin liberal leadership spill in 2018

- lack of cabinet solidarity: revealed abbott banned lib mps participating on Q&A due to unwanted negative media attention relating to 2015 terrorist attacks

- party constraints: turnbull's neg 2018 was too progressive for conservative libs, hence leadership spill

- the opposition: abbott's anti-carbon tax campaign successfull against gillard 2013

- media: tunbull challenged abbott as cited last 30 polls were unfavourable thus needed a new leader

- minority gov: gillard had to change stance on carbon tax as she needed support from Greens' Bandt to form gov

cabinet

a committee of the executive comprising of the pm and senior ministers holding portfolios. it is goverened entirely on the basis of convention and has no legal/constitutional authority, but id the most powerful institution of parliament

cabinet committees

an executive committee comprised of a selection of cabinet ministers that are relevant to a particular cuase, such as the national security committee of cabinet.

cabinet secrecy

convention in which cabinet meetings must not be discussed. legislation intails that meeting information may only become public knowledge after 30 years

arguments for cabinet secrecy

- allows for altering views to be put forward free from community judgement and media, which would limit the quality of debate

- ensures cabinet is viewed as a single unit

- prevents opposition wedging between ministers

arguments against cabinet secrecy

- may impinge on democracy as decisions are not transparent

- difficult to identify when secrecy is broken

cabinet solidarity

the convention in which once decisions have been made, the cabinet cannot publically disagree. if they disagree, the mp is obliged to resign from the executive and become a backbencher

why cabinet solidarity is important

- gov puts forward a united front, if not, easily undermined by the opposition and loses power

- decreased in prevalence: baranby joyce sple out against abbott's decision in 2015 to allow shenhua coal mine, but was not sacked!

westminster chain of accountability

1. people directly elect a parliament in a general election

2. lower house choses a gov. by giving it confidence to a group of ministers that form cabinet

3. indirectly elected cabinet ministers head the appointed departments - provide mandated policy direction

4. gov. depatments impelement policy and provide advice to ministers

5. parliament representing the people holds ministers accountable - individually and collectively

roles of cabinet

- develop and communicate narrative and vision of government

- develop and implement policies

- coordinate the machinery of gov

- act as an information exchange

- respond to a crisis

factors affecting functioning of cabinet

- the pm: personality and character

- relationship between ministers

- timing

- nature of decision

ministers

members of the executive arm of government, and members of the cabinet. ministers hold repsonsibility for particular areas of government

junior ministers

ministers who hold portfolios in less important areas of government activity

assistant ministers

used to be refered to as parliamentary secretaties - assist ministers that hold large portfolios

inner ministry

refers to the pm and cabinet level ministers. the inner ministry changes dependent on the pm, as they decice which portfolios are cabinet level

outer minstry

refers to junior ministers and assistant ministers

federal executive council

outline in section 62, the EXCO is comprise of the gg, pm and ministry. the gg is to act on the advice of the EXCO as per sextion 63

roles of a minister

1. managing a portfolio: responsible for a department

2. participating in cabinet meetinfs and deliberation on policy

3. maintaining the narrative of gov

4 publically supporting cabinet decisions through conventions of cabinet solidarity

5 answering to parliament under the convention of indivisual ministerial responsibility relating to political management, policy integreting and personal character

opposition

refers to the political party that holds the second largest number of seats in the lower house, and is able to form government

shadow ministry

the opposition front bench composed of spokespersons for each of the ministerial portfolios of gov that scrutinise gov. forms the alternative gov.

leader of the opposition

the leader of the party with the second largest number of seats in the lower house

private member

a member of parliament who is not a member of the cabinet or shadow ministry. the opposition's shadow ministry are private members but not back benchers

roles of the opposition

1. hold the executive power of the gov. to account

2. form a viable alternative gov.

mechanisms used by the opposition to hold the executive to account

- question time

- censure motions

- no-confidence motions

- appropriation bills

- debate

- quorum

- pairs

-divisons

- senate and senate estimates

- media

three things opposition must do to be a viable alternative government

1. have its own policies

2. present a unified cohesive vision to the nation

3. present as competent and ready to govern

factors affecting the success of an opposition

- impartiality of the speaker

- lack of resources: opposition recieves roughly 21% of the amount of resources the gov does

- executive dominance

divine right

the claim that the right to rule was derived off of God who chose and appointed the ruler

citizens

individuals/subjects of a state or commonwealth - an inhibitant of a town/city

mandate

a claim to power - the legitimate exercise of power. in australia the democratic claim to power is derived from the people