PALS WACE Exam Points of Discussion

Conventions of Responsible Government

Maintenance of Confidence (s64)

• CMR

• Party Discipline & Two Party Dominance

• E.g., No Confidence Motions Attempted Against Morrison Gove 2019-2022 but were Defeated

Cabinet Operates in Secrecy & Speaks as One

• s64

• Secure, soundproof room, records protected by law

• safeguards business of governing 

• Cabinet solidarity projects unity & stability

Dismissal of Ministers

• HOR through censure or no-confidence motion defeated

• Senate successful

Legislative Powers of the Commonwealth Parliament

S1 - CW holds Legislative power to make statute law

S53 - Both houses exercise near identical law making power with the exception of appropriation bills

Powers of the Commonwealth Parliament

• Specific/enumerated - s53, 39 heads of power

• Exclusive - s52

• Concurrent - s52

• Residual Powers - s107

How Federation Impacts Legislative Powers of the Commonwealth

• s51

• s52

• s109

• uniform tax case 1942

• Commonwealth v Tasmania 1983

Significance of S53 over the Powers of the House in the Commonwealth Parliament

Executive Powers with Reference to the Commonwealth Constitution

What is Meant by the Constitutional Executive

• s61

Significance of the Political Executive (Executive by Convention)

• direct policy, implement laws, manage day-to-day administration

• ensures democratic accountability

What is Meant by the Governor General

• S2

• S62

• power exercised on the advice of PM & Cabinet

• Reserve Powers

• Constitutional Crisis

Distinguish between Heads of State & Head of Government in the Australian Political System

Constitution must be Read with an Understanding of Responsible Government to Achieve an Accurate Picture of Australia’s System of Government.

• s2

• s61

• PM & Cabinet maintain confidence of the HOR

• Parliamentary Democracy

Causes of Executive Dominance

Responsible Parliamentary Government

Party Discipline

• 2025 48th Parliament HOR Numbers - ALP 94 seats

Functions of Parliament

Representation

• In Theory
  s7
  s24
  Delegate Representation 
  Trustee Representation

• In Practice
  Party Discipline
  Fatima Paymen’s crossing of the floor in 2024 to support a Greens motion recognising Palestine

Legislating

• In Theory
  All MPs can Introduce Legislation

• In Practice
  Gov dominates Legislative Agenda
  Gags, Guillotines & Floodgates
  Senate exercises greater scrutiny

Responsibility

• In Theory
  Executive must maintain confidence
  CMR
  IMR
  QT - scrutiny of money bills s53, parliamentary committees e.g, estimates committees

• In Practice
  exec dominance & discipline
  Senate provides greater scrutiny

Debate - In Theory v In Practice

• In Theory
  Senate serves as nations highest forum for debate
  QT

• In Practice
  Executive Dominance
  Standing Orders s50
  Gag & Guillotine motions
  Speaker Impartiality

Real/Political Executive

Prime Minister

• WM Conventions, no formal legal basis, party leadership, control of Cabinet & majority support in the HOR.

• Selects ministers, allocate portfolios, chair of cabinet meetings, directs gov policy, maintaining cabinet solidarity

Ministers

• s64

• Drawn from the senior ranks of the Majority Party (70% form the HOR & 30% form the Senate)

• PM selects & allocates portfolios

• Appointed by the GG

• Responsibilities:
  Participating in Cabinet
  Maintaining Cabinet Solidarity
  Accountability

Cabinet

• Executive committee of senior ministers

• selected at PM discretion, appointed by the GG

• May operate through sub committees

• Key Conventions:
  Secrecy
  Solidarity
  Policy & Decision Making

Ministry

• All gov ministers 

• constitute ExCo

• PM, Cabinet, Public Servants

Roles, Powers, & Limitations of the PM - Sources of Power

Source of Authority

• Maj Party Leader 

• s64

• Authority derived from WM Convention 

• Issue - hung parliament, GG Dismissal Powers

Role as Chair of Cabinet

• Controls Cabinet Agenda

• Guides Decision-Making & Policy Direction

Patronage & Ministerial Powers

• Appoints Ministers, Allocates Portfolios, Promotes/Demotes Ministers

• Reward Loyalists, Manage Internal Party Factions

Access to Information

Election Timing

Public Face of Government

Roles, Powers, & Limitations of the PM - Limitations of Power

Lack of Personal Mandate

Cabinet & Party Constraints

• Internal Dissent Limits Power

• Coalition Partners Constrain the PM

Federalism

House Majority

Opposition & Media

Roles, Powers, & Limitations of Cabinet - Sources of Power

Develop & Communicate Government Narrative

• Sets Policy & Ideological Direction of Government maintaining party Discipline & Solidarity

• ALP Cabinets

• Coalition Cabinets

Develop & Implement Polices

• Legislative Dominance of Executive (90% of Bills)

• Cabinet ensures legal enactment & efficient implementation of policy

Allocate Resources

• Coordinates Spending

• ERC

Coordinate the Machinery of Government 

• Act as the central decision making body

• Create, merge, abolish departments

• transfer responsibilities between ministers or agencies

• reorganising government structures

Act as an Information Exchange

• Provide centralised information

• discuss policy & impacts

• share department updats

• coordinate responses to complex problems

• prevents siloed decision making ensuring unified gov approach

Respond to Crises

• Exercise rapid decision action in emergency

• stage 3 tax cut revisions 2024

• demonstrates exec power linking cabinet deliberation to legislative & administrative implementation

Limitations of Power

Impact of the Prime Minister on Cabinet Function

• Personality & leadership style

• scomo religious views

• strong or autocratic pms may dominate debates (captains calls)

Relationships between Ministers

• Collegial cabinets

• dysfunctional cabinet

Timing & Experience of Government

• New gov

• Mature gov

Nature/Type of Decisions

• Deliberative Decisions

• Crises Decisons

Power of the HC of Australia

Chapter III of the Constitution

Creation & Role (s71-72)

Appellate Jurisdiction (s73)

Original Jurisdiction (s75-76)

• s75

• s75 v

• s76

• Case study - Commonwealth v Tasmania [1983] HCA 21

• Case study - Williams v Commonwealth (2012-2014)

Guardian of the Constitution

• Ultimate interpreter of the constitution

• federalism disputes

• Case study - Engineers Case (1920)

• Case study - Uniform Tax Case (1942, 1957)

Rights Protection (Limited)

• Constitution has few explicit rights protected by the HC

• S80 guarantees trial by jury

• Court implies rights through constitutional interpretation

Judicial Authority

What is meant by Judicial Authority

Sources of Judicial Authority

Common Law Decisions

Overview

Pell v the Queen [2020] HCA 12 - facts, issue, decision, significance

Constitutional Decisions:

Overview

Love and Thoms v Commonwealth [2020] HCA 3 - facts, issue, decision, significance.

Roles & Powers of the Opposition

Provide a Viable Alternative to Government:

• Overview

• Example

• Three Scenarios where the Opposition must be Ready to Form Government
  If government may fall during a parliamentary term after loosing the HOR’s Confidence
  A weak government loses the confidence of the HOR & no other party can form government
  Opposition party contests ordinary general elections against the governing party

Scrutinising Government Actions:

• Question Time

• Censure Motions & Motions of No Confidence

• Committees

• Debates & Matters of Public Importance

• Calling for Quorum

• Refusing Paris

• Strengths of the Oppositions Scrutiny

• Weaknesses of the Oppositions Scrutiny

• Opportunities for the Opposition to Scrutinise

• How the Opposition Overcome Limitations

Type of Political Mandates

Balance of Power Mandate:

• Definition

• Justifications

• Criticisms s7

• Example - 2022 Government Composition

Majoritarian Mandate:

• Definition

• Justifications
  Expression of the People’s will
  Accountability Mechanism
  Balancing Opposition Input

• Criticisms

• Example - 2025 Federal Election

Specific Mandate

• Example - 2022 Federal Election

General Mandate

• Example - 2025 Federal Election

Competing Mandate

• Example - 2022 Federal Budget

Hung Parliament

Definition

Example - why Gillard Minority Government was able to Exercise a Mandate

Powers of the GG

Legislative Powers

• Chapter 1 of the Constitution

• Proclaiming Parliament s5

• Proroguing or Dissolving Parliament s5

• Issuing Writs for the HOR s32

• Dissolving both houses in a Double Dissolution & convening a joint sitting s57

Executive Powers

• Chapter 2 of the Constitutions

• Exercised under s61

• appointing FEC s62

• Acting on EXCO’s advice s63

• Appointing & dismissing Ministers of state s64

• Appointing senior government officials s67

Express Powers

Reserve Powers

Roles of the GG

Ceremonial 

Non-Ceremonial

1975 Constitutional Crisis

Lead up

GG

Kerr’s Options

Powers Used by Kerr

Issues Raised

Legislative Executive & Judicial Powers with Reference to the Australian Commonwealth Constitution

Legislative Power (Chapter I)

Executive Power (Chapter II)

Judicial Power (Chapter III)

Legislative Executive & Judicial Powers with in One Non-Westminster Political & Legal System (America)

Legislative Power (Article I)

Executive Power (Article II)

Judicial Power (Article III)

Legislative Powers with Reference to the USA (Article I)

Exclusive Powers (Article I, Section 8)

Residual Powers (Tenth Amendment)

Concurrent Powers

Roles & Responsibilities of U.S Congress

• Law-Making & Finance

• War & National Security

• Oversight & Accountability

• Appointments & Treaties

• Judiciary

• Checks on the President

• Electoral Roles

Comparison with Australia - Similarities

• Both Liberal Democracies, rule of law, SOP

• Federalism

• Bicameral Legislature

• Australian Senate modelled on US Senate

• Separate, independent Judiciary

Comparison with Australia - Differences

• Introduction of Bills

• Committees

• Voting

• Assent

• System Influence

• Executive Relationship

Bicameral System

Examples of Executive Checks against the Legislative

• Presidential Veto

• Appropriations Power

America’s Executive Powers

Article 2 S1 vests exec power in President & Vice President

Powers of the President

• Head of State & Government

• Article II

• Executive Power

• Appointments

• Commander-in-Chief

• Diplomatic Role

• Legislative Influence

Executive Orders:

• Key Features - Scope, Limits

• Example - Trumps Travel Ban (Exec Order 13769, 2017)

• Example - Bidens reversal of exec order 13769, 2017 (2021)

War Powers:

• Shared between congress & President

• Constitutional Basis - congress can declare war (art I, s8), president as commander-in-chief (art II, s2)

• Example of Presidential Military Action - Iraq War 2003 George W Bush

• Significance

Executive Office of the President:

• White House Staff

• Cabinet Secretaries

• Example

Cabinet:

• Origins

• Role

• Composition

• Function

• Example

VP & Presidential Succession

• Succession

• Extended Line 

• Example

Judicial Powers with Reference to the USA (Article 3)

Article 3

Justices

• Composition 

• Nomination

• Tenure

Courts Jurisdiction:

• Original 

• Appellate

• Certiorari Act 1925

Judicial Review

• Marbury v Madison. (1803)

Role of the Supreme Court

• Article III

• Judicial Review

• Minority Rights

• BOP

Roe v Wade 1973

• Article III

• 14th Amendment’s Due Process Clause

• Shape national Policy & act as a check on Legislative & Executive Power

Checks & Balances in Australia & the US

Judicial Appointments

Executive Legislative Relationship

Impeachment

Comparison of Primary Checks & Balances between Australia & the US

Senate Conformations of President Appointment to Cabinet & Supreme Court Justices - AU v US

Congress must Approve Acts of War & Expenditure Bills - AU v US

President can Veto Congress’ Legislation & can Override a Presidential Veto - AU v US

Supreme/Federal Court’s Review of Executive Orders - AU v US

Supreme/Federal Courts’ Interpretation & Review of Laws made by Congress - AU v US

Impeachment of Executive including the President - AU v US

Impeachment of Justices - AU v US

The Chief Justice Presides in the Senate during a President’s Impeachment Trial - AU v US

Types of Federalism

Coercive Federalism

Coordinate Federalism

Cooperative Federalism

Exclusive Powers in Regard to Federalism

Definition

Constitutional Basis:

• s52

• s90

• s114

• s115

Significance

Concurrent Powers in Regard to Federalism

Definition

Constitutional Basis:

• s51, s51ii, s51xxi, s51xii, s51xvi, s51xxix

• s109

Significance

Residual Powers in Regard to Federalism

Definition

Constitutional Basis:

• s51

• s52

• s90

• s51

Significance

• VFI

Quarantine Power in Regard to Federalism

Constitutional Basis

• exclusive power s51(ix)

Context

Reason for Handballing

• lack of confidence in cw capacity

• international & interstate arrivals

Political Debate

• CW responsibility

Significance

• federal flexibility

• exclusive cw powers can be temporarily delegated to states

Financial Powers in Regard to Federalism

Financial Powers - Definition & Constitutional Basis

• s51ii

• s90

• s96

• s53, s54, s81

VFI

• states hold residual powers

Case Studies

• Uniform Tax Case 1942 & 19757

• Ha v NSW (1997)

Grants under s96

• General Purpose Payments

• Specific Purpose Payments

• Incentive Payments

• National Partnership Payments

Significance

• central to BOP

• s96 extends influence into residual state responsibilities

Change in the BOP since Federation has been due to

Financial Powers

• VFI

• Grants & S96

• HC Decisions
  Uniform Tax Cases 1942 & 1957
  Ha v NSW 1997

• HFE

Intergovernmental Councils

• COAGE

• NFRC

• National Cabinet

Referral of Powers

• s51xxxvii

HC Decisions Expanding CW Power

• External Affairs s51xxix
  Koowarta 1982
  Tasmanian Dams 1983

• Corporations Power s51xx
  Concrete Pipers 1971
  Work Choices 2006

Recent Trends

• Greater intergovernmental cooperation

• CW drives national reform through financial leverage HC interpretations & voluntary referrals reflecting shift from coordinate to coercive federalism

Why Financial Powers including VFI & HFE & the Grants Commission are important when considering overall BOP between Federal & State Governments

VFI

• Definition

• Cause

• Consequence

• Key Idea

HFE

• Definition

• Purpose

• Mechanism

• Key Idea

Significance in Federalism

• Financial Powers, VFI & HFE

• s90

• HFE Promoted equity among states, VFI consolidates financial & policy power in the cw

• Case Studies
  Unform Tax Cases 1942 & 1957
  GST Distribution post 2000

How GST Achieves HFE & why is can be describes as cooperative federalism

• HFE

• Cooperative Federalism Aspect

• Constitutional Basis
  s96

Describe Purpose of the CW Grants Commission

• Role

• Objective
  acheive HFE

• Mechanism

• Constitutional Basis
  s96

• Cooperative Federalism

Council of Australian Governments

Explain COAG

• Definition

• Composition

• Purpose

History of COAG

• Est. 1992

• Purpose

• Legacy

Cooperative Federalism & COAG

• Definition

• COAG’s Role

• Mechanism

• Examples & Case Studies

• Significance

How the NRA & IGAFFR Worked:

• National Reform Agenda 2006

• Intergovernmental Agreement on Federal Financial Relations (IGAFFR, 2009)

• National Partnership Payments s96

• Significance

Examples of Cooperative Projects that came about as a result of the NRS & IGFFR

• National Disability Insurance Scheme NDIS
  Context
  Cooperative Nature
  Outcomes

• National Education Agreement NEA
  Context
  Cooperative Nature
  Outcomes

• Significance

Coercive Federalism & COAG - National Competition Policy Keating

• Context

• Coercive Mechanism

• Effect

• Significance

COAG as a Vehicle to Increase CW Power

• For Increasing CW Power
  Financial Dominance s96
  Agenda Setting
  National Reform Agenda
  Incentive Payements

• Against Increasing CW Power
  Joint decision making
  Shared Reforms
  Intergovernmental Agreements
  State Autonomy in Delivery

Formal Constitutional Change - Referendum

Significance of s128 - Referendum Process

• Enables formal constitutional change

• Process ensures democratic legitimacy (direct vote - direct democracy)

• Parliamentary Approval required

• Royal Assent

• Timing

• Double majority requirement

• Final Assent

• significance

Example of a Failed Referendum

• 1999 Republic Referendum
  Issue
  Outcome
  Reason
  Significance

• 2023 Voice to Parliament Referendum
  Issue
  Outcome
  Reason
  Significance

Characteristics of Defeated Proposals

• Distrust of Politicians

• ‘if it isn’t broke, don’t fix it’ mentality

• Apathy/Low political Engagement

Proposals which Led to Change

• 1967 Indigenous Australian Referendum
  Issue
  Reason for Success
  Significance

• 1977 Retirement of Judges Referendum
  Issue
  Reason for Success
  Significance

• 1928 Debts Referendum
  Issue
  Reason for Success
  Significance

Characteristics of Successful Referendums

• Not a Power Grab

• Small, Technical Changes

• Bipartisan Support

• Appeal to Public or State Interest

• Supported by s128 Process

1977 Casual Senate Vacancies Referendum - Link to 1975 Crisis

• Issue

• Link to 1975 Crisis

• Purpose of the Referendum

• Outcome

1999 Republic Referendum - Regarding Powers of the GG

• Issue

• Significance

• Debate

• Outcome

Informal Constitutional Change

Definition

High Court Decisions

• Interpretation of the Constitution

• s76

• Why decisions lead to informal change

• impact on Federal balance
  E.g., Uniform Tax Case 1942

• Landmark cases
  Koowarta 1982 & Tasmanian Dams 1983
  Concrete Pipes 1971 & Work choices 2006
  Ha v NSW 1997

• Significance

Defining Executive Power - Williams v Commonwealth 2012

• Background

• HC Ruling
  s61
  s51

• Significance for Executive Power

• Impact as Informal Constitutional Change

Defining Legislative Power - Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3

• Background
  s51xix

• HC Ruling
  Migration Act s198

• Significance for Legislative Power
  s51xix
  special constitutional status for indigenous Australians

• Impact as informal constitutional change
  HC can update meaning of constitutional provisions
  s51xix altering federal BOP

• Illustrates judicial interpretation can create significant practical limitations of legislative powers

Finding Implied Rights within the Constitution

• Definition

• HC Role

• Landmark Case - Australian Capital Television v Commonwealth 1992

• Impact on Informal Constitutional Change

Rights within s7 & s24 - Roach v Electoral Commissioner 2007

• Issue

• Constitutional Basis s7 & 24

• Decision 

• Significance
  s7
  s24
  s128

Cases Resulting n Changes to the BOP

• HC has been central in reshaping federal BOP favouring CW 
  s51
  s61
  s81 & s96

• Uniform Tax Case (South Australia v Commonwealth 1942)

• Uniform Tax Case (Victoria v Commonwealth 1942)

• Spence v Queensland 2019

Referral of Powers - s51xxxvii

• s51xxxvii

• How it works
  s51xxxvii
  Effect
  Limitation

• Examples of Referrals
  Family Law 1975-1990

Unchallenged Legislation

• Definition & Mechanism

• Case Studies & Examples

• Snow Mountains Hydro-Electric Power Act 1949

• Effects of the BOP

• Barriers to Challenge

Ways to Influence Law making

Through the Courts

• Chapter III of the Constitution

Through Parliament

• s1 of the Constitution

• Political Parties

• Individual Ministers & Senators

• Pressure Groups

Overall Effectiveness

Individuals & Lawmaking

Limitations

• Lack of Resources

• Lack of Access

• Lack of Organisational Support

Influencing Lawmaking in Parliament

• Voting in Elections

• Contacting Local MPs

• Joining Political Parties

• Submissions to Parliamentary Committees

• Independent Members of Parliament

• Independents May
  Introduce PM Bills
  Debate & Propose ammendments
  Vote on Legislation

• However

• Case Study - Dr Kerryn Phelps & the MEDEVAC Bill 2018

• Case Study - Gillard’s Minority Government 2010-2013

• Partisan MPs Acting Independently
  Case Study - Dean Smith Liberal WA

Individuals Influencing Lawmaking in the Courts

• Challenges of Court Based Influecne

• Case Study - Roach v Electoral Commissioner 2007 233 CLR 162
  HC ruling
  Impact

• Case Study - Williams v CW 2012 & 2014

Evaluation of Individual Influence

• Parliament

• Courts

• Overall

Poltitical Parties & Lawmaking

Definition of Political Parties

Lawmaking in Parliament

• Major Parties
  Definition
  Influence
  Examples

• Minor Parties
  Definition
  Strategies for Influence

• Micro Parties
  Definition
  Effectieness
  Example

Lawmaking in the Courts

• Rare but Significance Court Influence
  Successful Example
  Unsuccessful Example

Evaluation of Political Party Influence

• Parliament

• Courts

• Overall

Pressure Groups & Lawmaking

Definition of Pressure Groups

Methods of Influence

• Lobbying Parliament & MInisters

• Submissions to Parliamentary Committees

• Legal Action

• Electoral Campaigning

• Public Demonstration & Strikes

Types of Pressure Groups

• Sectional Pressure Groups
  e.g., Australian Council of Trade Unions

• Promotional/Cause Based Pressure Groups
  e.g., Getup!

Lawmaking in Parliament

• Minerals Council of Australia

• Business Council of Australia 2019

• AMA & GP Co-Payment 2014

• Social Services Legislation Amendment (No Jab, No Pay Act 2015

Lawmaking in the Courts

• Court Action as a Tool

• Factors Affecting Success
  Resources
  Standing
  Public Profile
  Precedent

• Examples of Pressure Groups Influencing Law through the Courts
  Successful Example - Australian Communist Party v Commonwealth 1951

• Cause Based Group Example - Environmental/NGO Challenges
  e.g., Bushfire Recovery & Environmental Cases

• Unsuccessful Attempt - Day v Australian Electoral Officer 2016

Evaluation of Pressure Group Influence

• Sectional Groups

• Caused-Based Groups

• Pressure Groups Influence Lawmaking by:
  Framing National Debates
  Pressuring Political Parties & Ministers
  Influencing Voter Sentiment & Election Outcomes

• Influence in courts is possible but rare primarily impacting Parliament or public opinion, even unsuccessful court cases can 
  raise public awareness
  Pressure Parliament
  Establish Legal Precedents

Participation

Definition

Why its Essential to Accountability

• Ensures transparency

• Ensures Responsiveness

• Ensures checks on power

Participation in Australia v China

• Australia - Participation Strengthens Accountability
  Compulsory Voting
  Pressure Groups & Petitions
  Media Freedom

• China - Lack of Participation Weakens Accountability
  2022 White Paper Protests

Rule of Law

Definition

What it Ensures

• Equality before the law

• Transparency & Certainty

• Independent Judiciary

Why its Essential to Accountability

• Governments are constrained by legal limits

• citizens can challenge unlawful decisions

• Transparency & Legal Scrutiny

Rule of Law in Australia

• Robodebt Royal Commission 2023

• Administrative Appeals Tribunal & later the Royal Commission

Judicial Independence

• HC of Australia

• Example Plaintiff M68/2015 v Minister for Immigration and Border Protection

Open Government

Definition

Core Principles

• Transparency & Accountability of gov held info

• Mechanisms for oversight

• Free & Independent media

• Increasing participation

Why Open Government is Essential to Accountability

• Transparency

• Oversight & Scrutiny

• Public Trust

Open Government in Australia

• Medevac laws

• 2019, morrison gov reliance on Jacqui Lambie’s vote

Natural Justice

Definition

Core Principles

• Decision maker must be impartial

• Both parties have equal opportunity to present their case

• judgements rely solely on relevant evidence

• transparency in decision making

• right to appeal

Why Natural Justice is Essential to Accountability

• ensures gov institutions & officials are bound by law

• promotes public confidence

• strengthens judicial accountability

• reinforces rule of law

Natural Justice in Australia

• Right to Fair Hearing

• Impartial Decision Making

• Strict Rules of Evidence

• Right to Appeal

• Trial by Jury s80

Dietrich v the Queen 1992

Good Government is

Accountable

• Executive Accountability

• Parliamentary Oversight

• Party & Committee Accountability

• Chain of Responsibility in a Liberal Democracy

Transparent

• Definition of transparency

• Why transparency is essential to good government 
  Accountability
  Public Trust
  Prevention of Corruption

• Mechanisms that uphold transparency
  Parliamentary Oversight - QT & Parliamentary Committees
  Senate Estimates
  Public Access to Information

• Mechanisms that Undermine Transparency
  Cabinet Secrecy
  Undisclosed Political Donations

Abiding of the Rule of Law

• Definition of the Rule of Law

• Core Principles

• How this Defines Good Government

• Case Study - Williams v Commonwealth (No. 1) [2012]

• Case Study - Plaintiff M70/2011 v Minister for Immigration & Citizenship

Responsive:

• Definition of Responsiveness 

• How this Defines Good Government

• Ways Responsiveness is Upheld
  Short Electoral Cycle 3years
  QT & Parliamentary Scrutiny
  Constituent & Pressure Group Influence
  Senate Negotiation & Minority Governments

• Ways Responsiveness is Undermined
  2007 Howard Government - Work Choices
  2022 Morrison Government - Public Disconnect

Equitable & Inclusive

• Definition of Equity & Inclusion

• How Equity & Inclusion Define a Good Government

• Ways Equity & Inclusion are Upheld
  Diverse & Representative Senate
  Parliamentary Joint Committee on Human Rights
  Public Consultation through Committees

• Ways Equity & Inclusion are Undermined
  Abbott Government’s National Security Bills 2014

Efficient & Effective

• Definition of Efficiency & Effectiveness

• How Efficiency & Effectiveness defines a Good Government

• Ways Efficiency & Effectiveness is Upheld
  Majority Governments
  Legislative Productivity
  Timely Crisis Response

• Ways Efficiency & Effectiveness are Undermined
  Leadership Spills & Internal Division
  Legislative Gridlock

Accountability of Parliament through Elections

Definition of Elections & Participation

Free Fair & Regular Elections

• AEC 

• Voting Systems
  HOR - Preferential Representation
  Senate - Proportional Representation

• Compulsory Voting

• Constitutional Provisions
  s28
  s7

Electoral Accountability in the HOR

• Why the House is more accountable

• Single Member Electorates

• Marginal v Safe Seats

Accountability in the Senate

• Structure & Representation

• Proportional Representation

• Committees & Oversight

• House of Review Function

• Limitations

Why Multimember Electorates Fail to Achieve Strong Accountability

•  Structure of Senate Representation

• Lack of Direct Representation 

• Proportional Representation & Malapportionment

• Extended Terms & Limited Electoral Pressure

• Case Studies
  Fraser Anning 2017-2019
  Bill Heffernan Liberal NSQ

Role of the Media

Accountability in Practice

• Sophie Mirabella - Indi 2013

• Tony Abbot Warringah 2019

How Single Transferable Votes Reduce Accountability (how this has been improved sine 2016

Definition of Participation

System of transferrable votes in Senate Elections

Improvements since 2016

Example

How Malapportionment Affects Accountability in the Senate

Definition of Participation

Malapportionment in the Senate

• Constitutional Basis

• Effect

• Example

Impact on Accountability

Case Study

• Jacqui Lambie Tasmania

Accountability through Election with the 2025 Aus Election as an example

Definition of Participation

How the 2025 Election Upheld Parliamentary Accountability

• Voter Rejection of Poor Performance
  Coalition Losses

• Rewards for Policy Delivery
  Labor Gains
  Positive Accountability

• Independents & Minor Parties
  Teal Independents & Bradfeild Flip
  Impact

• Senate Oversight
  Diverse Upper House
  Accountability Mechanism

How the 2025 election Highlighted Risks to Accountability 

• Majoritarian Risks in the House
  Strong Labor Majority (94 seats)
  Implications

• Party Loyalty v Individual Responsibility
  Party Discipline
  Effect

Conclusion

Accountability of Parliament through the HOR & Senate Privileges Committee

Role of Parliamentary Committees

Types of Committees

• Standing Committees

• Select Committees

• Joint Committees

HOR & Senate Privileges Committees

How Committees Uphold Accountability

Privileges Committee

What is Parliamentary Privilege

Role of Privileged Committees

• Investigate alleged breaches of Parliamentary Privilege & contempt of Parliament

• Members, witnesses & others cannot be sues or prosecuted

• Uphold integrity & proper functioning of Parliamentary processes

• Enable Parliament to protect processes from obstruction

House & Senate Privileges Committees

Constitutional & Legal Basis

• s49

• Parliamentary Privileges Act 1987 cth

How Participation is Upheld

• Members Engagement

• Witness Involvement

• Transparency

Significance

• Protects Freedom of Speech

• Upholds Accountability

• maintains Institutional Integrity

Advantages of Parliamentary Privilege

• Freedom of Speech

• Enhanced Scrutiny

• Effective Parliamentary Inquiry

• Strengthened Democratic Accountability

• Legal & Procedural Basis

Case Study - Senate Privileges Committee & Craig Thompson

Ability of Privileges Committee to Discipline

• Disciplinary Powers
  Limited Sanctions
  Rationale

• Case Studies - use of Parliamentary Privilege
  Andrew Hastie
  Nick Xenophon 2011
  Bill Heffernan

• Accountability Implications
  Strengths
  Limitations

HOR Standing Committee of Privileges & Member’s Interests

Key Functions

• Investigating Breaches of Privilege or Contempt

• Oversight of the Register of Members’ Interests

• Examining Complaints on Declarations

• Extending Oversight to Non-Members

Case Studies

• Craig Thomson 2012-2016

• Register of Interests Enforcement

Accountability Implications

• Strengths

• Limitations

Significance

• Supports good governance by monitoring MP conduct & interests

• Strengthens public confidence in Parliamentary accountability

• ensures MPs cannot act with hidden conflicts

Accountability of Parliament within the Procedures & processes of Parliament

Parliamentary Procedure

• Definition

• Standing Orders

• Role of Speaker/President

Committee & Legislative Scrutiny

• Parliamentary Joint Committee on Human Rights

• Impact of Committee Oversight

Overall Assessment

Accountability of Parliament through Judicial Review

Judicial Review as a Mechanism of Accountability

• Purpose & Principles

• HC & Constitutional Oversight

Case Studies

• s44 - Dual Citizenship Crisis 2017

• s51 Law-Making Oversight

Mechanisms of Accountability through Judciial Review

• Constitutional Enforcement

• Remedial Actin

• Legal Scrutiny

• Dialogue Between Branches

Value of Committees Keeping Parliament Accountable

Role & Purpose of Parliamentary Committees

• Scrutiny of Legislation

• Review of Government Activity

• Public Engagement & Expert Input

Strengths of Committees

• Detailed Oversight

• Promote Transparecny

• Encourage non-partisan engagement

• Facilitate public participation

Limitations:

• Finding are non-binding

• effectiveness reduced by partisanship

• outcomes depend on committee composition, resources & political context

How CMR& IMR Hold the Executive & Public Servants Accountable

Define CMR 

CMR - Mechanism of Accountability 

• Parliamentary Scrutiny

• Cabinet Solidarity

• Confidence of the Lower House s64

CMR - Example - 2022 Robodebt Commission

Evaluation of CMR

• Core accountability mechanism

Define IMR

IMR Mechanism of Accountability

• Parliamentary Scruitiny

• Censure Motions

• Resignation Principle

• Administrative Oversight

IMR - Example - Stuart Robert 2023

Evaluation of IMR

• Core accountability convention linking exec power to parliamentary scrutiny

Accountability of Public Servants:

• Link to Ministerial Responsibility

• Institutional Checks

Media & Public Participation

Why Individual Ministers have become Less Accountable in Recent Years

Prime Ministerial Discretion Undermines Consistent Application of IMR:

• IMR is a convention

• s64

• Case Study - Richard Colbeck 2020

• Evaluation

Political Control of the Lower House Shields Ministers from Accountability

• WM Majority government structure

• Case study - Mal Brough 2015 or Michaelia Cash 2017

• Evaluaton

Value of Ministerial Responsibility in Safeguarding Executive Accountability

Ministerial Responsibility as a Foundation of Responsible Government

• Overview

• Value

Upholding Standards & Democratic Culture

• Key Role

• Example

• Impact

Conventions as Normative Safeguards

• Function - Guides Executive Behaviour

• Function - Encourages Ethical Standards

• Function - Maintains Parliamentary Supremacy

Evaluation

How the Accountability of the Executive & Public Servants is Upheld through Senate Estimates & at Least One other Committee of the CW Parliament

Senate Estimates Committees

• Purpose & Function

• Strengths

• Weaknesses

Joint Committee of Public Accounts & Audit (JCPAA)

• Purpose & Function

• Impact on Accountability

• Example

Key Features Supporting Accountability

• Feature - Powers

• Feature - Scope

• Feature - Transparency

• Feature - Enforcement

Constitutional & Political Context

• s64

Evaluation

How the Accountability of the Executive & Public Servants is Upheld by the Commonwealth Auditor General & the Administrative Appeals Tribunal 

Commonwealth Auditor General

• Purpose & Role

• Key Functions

• Independence & Accountability 

• Case Study - Bridget Mckenzie Sports Rorts 2020

Administrative Appeals Tribunal 

• Purpose & Role

• Scope & Limitations

• Effectiveness

Combined Impact on Executive Accountability

• Mechanism - Auditor General/ANAO
  Role
  Strengths
  Limitations
  Example

• Mechanism - AAT
  Role
  Strengths
  Limitations
  Example

Constitutional & Political Context

Evaluation

How the Accountability of the Executive & Public Servants is Upheld by the Administrative Appeals Tribunal

Overview of Administrative Appeals

Establishment & Purpose

• Established under Administrative Appeals Tribunal Act 1975

• Ensures fairness, accountability & transparency

Functions & Jurisdiction

• Merit Review

• Powers

• Significance

Strengths of the AAT

• Broad Scope

• Merit Review

• Accessible Process

• Independence

• Right of Appeal

Weaknesses of the AAT

• Not a Court

• Rising Costs & Complexity

• Flexible Evidence Rules

• Limited Grounds for Appeal

• Limited Transparency

Case Study - Christine & Anthony Hyde 2019

Significance for Accountability

How Accountability of the Executive & Public Servants is Upheld by the Judiciary

Definition & Concept

• Judicial Review

• Rule of Law

• Participation

Constitutional & Legal Basis

• s72

• Legally binding orders

• SOP

Role of the Judiciary in Executive Accountability

• Lawful Oversight

• Public Servant Accountability

• Judicial Independence

Powers & Mechanisms

• Federal Courts

• High Court

• Legal Remedies
  Writs of Mandamus
  Injunctions

Strengths of Judicial Accountability

• Upholds Rule of Law

• Focus on Legality, Not Politics

• Binding Decisions

• Protections of Rights

Limitations

• Access & Cost

• Scope

• GG Exemption

• Focus on Law, Not Merit

Case Study -AFX17 v Minister for Home Affairs (No 4) [2020]

Office of the Governor General

Appointment & Term

• Constitutional Basis - s2

• In Practice

• Current Officeholder

Historical Background

Roles of the Governor General

• Constitutional Roles
  Appointing Ministers - s62 & s64
  Judicial Appointments - s72
  Royal Assent to Bills - s58
  Parliamentary Powers - s5, s28, s57
  Commander in Chief - s68

• Ceremonial Roles

• Civic/Community ROles

Powers of the governor General

• Express Powers
  Definition
  Examples

• Reserve Powers
  Definition
  Exampels
  Case Study - 1975 constitutional crisis

Accountability & Limitations

Significance of the Office

Accountability through Tenure & Removal

Tenure of the Governor General

• Constitutional Basis - s2

• Implications

• Purpose

Mechanisms of Removal

• Constitutional Basis - s2

• In Practice

• Historical Context

• Financial Independence

Circular System of Accountability

• Mutual Checks Between the GG & PM
  GG Reserve Powers
  PM Oversight

• Significance
  Ensure BOP

• Example - 1975 Constitutional Crisis

Case Study - Dr Peter Hollingworth 2001-2003

• Background

• Formal Accountability Mechanism

• Outcome

• Significance

Case Study 1975 Constitutional Crisis

• Context

• GG Action

• Accountability Implications

Significance of Tenure & Removal Mechanisms

• Formal Mechanisms 

• Conventions & Public Opinion

• Ensures the GG:
  Acts Impartially
  Uses Reserve Powers Responsibly
  Remains Aligned with Democratic Governance

Judicial Accountability

Importance of Judicial Accountability:

Types of Judicial Accountability

• Internal Accountability - Processes within the Court System
  Appeals Process
  Doctrine of Precedent
  Trial Process & Fairness
  Open Trials & Public Confidence
  Role of Chief Justices
  Case Study - HC Appeal in Mabo v Queensland (1992)

• External Accountability - Processes Outside the Court System
  Parliamentary Scrutiny & Legislation
  Censure & Removal of Judges

Significance of Judicial Accountability

• Ensures courts maintain public trust & legitimacy

• Balances Judicial Independence with responsibility

• Supports rule of law

• Promotes fairness, transparency & predictability

Accountability through the Appeals Process

Definition & Purpose of Appeals

Doctrine of Precedent & Ratio Decidendi

• Doctrine of Precedent (stare decisis)

• Accountability through Precedent
  Consistency & Fairness
  Predictability
  Judicial Accountability
  Transparency

• Review of Ratio Decidendi
  Appellate Judges
  Lega Practitioners
  law Reform Bodies & Academics
  Other Judges

HC Appellate Jurisdiction

• Constitutional References
  s73
  s25a

• Special Leave to Appeal

Appeals as a Mechanism of Judicial Accountability

• Internal Discipline for Judges
  Judge Sandy Street
  Judge Salvatore Vasta

• Correction of Miscarriages of Justice
  Andrew Mallard [2005]
  Pell v The Queen [2020] HCA 12

Limitations of the Appeals Process

• Time Constraints

• Special Leave may be Denied

• High Costs

• Scope Limitations

Significance & Impact

• Consistency & Fairness

• Transparency

• Public Confidence

• Legal Reform

• Hierarchal Accountbaility

Case Studies Demonstrating Judicial Accountability

• Andrew Mallard [2005]

• Pell v The Queen [2020] HCA 12

• Judge Sandy Street & Judge Salvatore Vasta

Accountability through Transparent Processes & Public Confidence

Importance of Public Confidence

• Courts are independent, neutral, apolitical & authoritative

• Key Principles Supporting Confidence
  Independence
  Impartiality
  Authority
  Natural Justice

Mechanisms that Promote Transparency

• Open Trials

• Published Judgemnts

• Evidence-Based Decision Making

• Media Coverage

• Transparency Reinforces
  Accountability of Judges
  Public Understanding of Legal Reasoning
  Confidence in Fair Outcomes

Appeals & Reinforcement of Public Confidence

• Functions of Appeals

• Case Studies
  Andrew Mallard [2005]
  Pell v The Queen [2020] HCA 12

Trial by Jury & Community Involvement

• Community Standards

• Democratic Legitimacy

• Acceptability of Verdicts

Natural Justice & Procedural Fairness

• Impartial Adjudicator

• Hear Both Sides

• Evidence-Based Decisions

• Public Hearings

Case Studies

• Justice Dyson Heydon

• Witness K & Bernard Collaery

How Public Confidence is Undermined

• Barriers to access, high costs & slow procedures

• Manipulation of legal process or secret trials

• Perception of bias or unequal treatment before the law

Accountability through Parliamentary Scrutiny & Legislation

Parliamentary Sovereignty

• Definition

• Key Features
  Law Making Supremacy
  Clarifying Law
  Limiting Judicial Discretion
  Removing Judges (rare cases_ s72

• Limits

Parliament Overriding or Clarifying Judge Made Law

• Parliament can abrogate common law

• Case Study - Trigwell 1979

• Case Study - Native Title Amendments 1997

Limiting Judicial Discretion through Legislation

• Judicial Discretion

• Examples of Legislative Oversight
  Mandatory Sentencing in WA
  Native Total Act 1993 (Cth) & Timber Creek Case (2019)

Responding to Public Pressure & Populism

Legislative Framework Ensuring Judicial Oversight

• Examples
  Judiciary Act 1903 (Cth) - Chapter III

• Sentencing & Evidence Acts (WA, 1995 Onward)

Summary

• Parliament Holds Courts Accountable Through
  Overriding or clarifying judge-made law
  Limiting Judicial Discretion
  Responding to Public Expectations
  Rarely Disciplining Judges

Accountability through the Censure & Removal of Judges

Constitutional Basis for Removal

• s72

• Significance

Censure Motions

• Definition

• Characteristics

• Uses

• Significances

Grounds for Removal

• Proved Misbehaviour or Incapacity

• Implications

Notable Examples of Judicial Misconduct

• Magistrate Barbra Lane (WA, 2022)

• Justice Marcus Einfeld (NSW 2008)

• Justice Dodd (NSW)

Case Study - Justice Angelo Vasta

• Context

• Removal

• Significance

Significance for Judicial Accountability

• Strengths

• Weaknesses

How Rights are Protected by the Constitution

US Constitution Overview:

• Considerations of Founding Fathers when Drafting the Constituion

• Constitutional Bill of Rights

• How a Constitutional Bill of Rights can Strongly Empower the Judiciary 

• Judicial Enforcement of the Bill of Rights

Case Studies

• Roe v Wade 1973

• Dobbs v Jackson Women’s Health Organisation 2022

Advantages of the US Bill of Rights v Disadvantages of the US Bill of Rights

• Advantages:
  Protection of Individual Liberties
  Limitation of Government Power
  Judicial Review
  Clear Legal Standards
  Prevention of Tyranny
  Public Awareness

• Disadvantages:
  Rigidty
  Ambiguity
  Limited Scope
  Overemphasis on Individual Rights
  Legal Complexity
  Potential for Misuse

Amendment of Constitutional Rights:

• Why Amending the Australian Constitution to Update Rights is more necessary than Amending the US Constitution

• Why Amending the US Constituion to Update Rights is a Significant Challenge for the US

How Rights are Protected by Statute

Advantages v Disadvantages of Statutory Rights in Relation to the USA:

• Advantages:
  Adaptability
  Responsivensss
  Public Control
  Legislative Accountability

• Disadvantages:
  Instability
  Executive Dominance
  Limited Scope
  Judicial Power

Key Human Rights Derived from Common Law in the US:

• Right to a Fair Trial

• Right to Privacy

• Right to Free Speech

• Right to a Jury Trial

• Right to Remain Silent

Common Law Case Study - Bostock v Clayton Country Georgia [2020]

International Law

US Position on International Human Rights

Legal Mechanisms

Strategic & Political Considerations

Controversial Human Rights Practices

USA’s Approach to International Law Rights:

• General Position

• Legal Mechanisms

• International Criminal Court (ICC) Concerns

• Human Rights Issues - War on Terror

Comparison of Australia & the USA’s Protection of Human Rights through Constitutional Law

• Amendment/Removal of Rights

• Entrenched Rights

• Enforceability

• Implied Rights

• Separation of Powers

• Complexity & Duration of Amendment

Comparison of Australia & the USA’s Protection of Human Rights through International Law

• Participation in international human rights law

• Legal effect of treaties

• International Scrutiny

• Enforcement of Human Rights

• Controversial Practices

• Strategic Considerations

Case Study - USA Detention Practices & International Human Rights Laws

• Detention Facilities

• Legal Challenges & Court Decisions

• Human Rights Concerns

• International Law Implications

• How the Holding of Terror Suspects at Guantanamo Bay Violates Rights

• Role of the Court in Protecting the Rights at Guantanamo Bay

Comparison of Democratic Principles in Australia & the USA

Representation - What the Country Does Well

• Australia

• USA

Representation - What the Country can Improve

• Australia

• USA

Participation - What the Country Does Well

• Australia

• USA

Participation - What the Country can Improve

• Australia

• USA

The Rule of Law - What the Country Does Well

• Australia

• USA

The Rule of Law - What the Country can Improve

• Australia

• USA

Judicial Independence - What the Country Does Well

• Australia

• USA

Judicial Independence - What the Country can Improve

• Australia

• USA

Natural Justice - What the Country Does Well

• Australia

• USA

Natural Justice - What the Country can Improve

• Australia

• USA