S.64 Responsible government - The Westminister convention whereby Executive is drawn from and accountable to the Legislative (parliament). Government is formed in the Lower House.

• This creates a fusion of the Legislature and Executive. Responsible Govt is implemented in Australia through the Prime Minister and Cabinet being drawn from the HoR and forming the political executive.

Representative government - Refers to a political system where the people are sovereign but elect representatives to parliament to act as their delegate in law making. This is applied in Australia through the HoR elections being held every three years (S.24) and senate elections every 6 years (S.7).

S.53 of the Constitution stipulates that the Senate may not initiate or amend money bills. Implies how the HoR possesses more power as they control how money is spent

Separation of powers - The doctrine of the separation of powers ensures that the Executive, Legislative and Judicial branches act independently of each other.

In Australia, as the executive being drawn from the legislature, separation of powers is limited as executive is drawn from the legislature, which undermines the principles of SOP as the branches are fused.

Division of powers

• Federalism - A system of government in which power is divided between a national government and two or more state governments. Requires a written constitution for the settlement of disputes over the division of powers.

• Exclusive - specified in the constitution, belonging only to the commonwealth. S.115, power to coin money.

• Concurrent - specified in constitution, belonging to the Commonwealth and states. S.51 (ii) taxation

• Residual - not specified in constitution, states are responsible. E.g., education

• S.109, if CW law and state law conflicts, CW law will prevail.

Westminster

• Government is formed by the party holding the majority in the lower house (HoR).

• The Prime Minister is the leader of the party with the majority of seats in the lower house.

• Collective ministerial responsibility (CMR) - if a no-confidence motion is passed, govt. must resign (unlikely to happen due to executive dominance). E.g., 1941 Fadden govt had to resign.

• Individual ministerial responsibility (IMR) - Ministers have to act with propriety, honesty and integrity. If a censure motion is passed with absolute majority, the minister (HoR) must resign, Christian Porter accepted money from a blind trust, and a censure motion was pushed (did not pass as he resigned).

Governor General powers and roles:

• The commander in chief of the armed forces is vested in the governor general S.68

America

Powers of the Executive

Executive orders

• An Executive order is means of issuing federal directives used by the President that manages operations of the federal government

• E.g., Executive order 14004 - Enabling all qualified American to serve their country in uniform 2021. Allowed transgender people to serve in the armed forces, as Trump banned them from serving in 2017, this revoked that decision.

• Federal status (Title 10 of United States code) allows the president to determine policy and eligibility of armed services.

Veto power

• Presidents can veto legislation passed by the HoR and Senate.

• October 22 2015, Obama vetoed HR 1735 - the national defense authorization act for fiscal year 2016 - a 612 billion defense authorization bill.

• The bill would have prohibited him from closing the Guantanamo bay detention center, which he promised to do while campaigning for President in 2009.

Pardons

• Article 2, S.2 The President “shall have the power to grant pardons for offences against the United States (federal crimes)”

• August 25 2017, Trump pardoned Joe Arpalo for criminal contempt of court, a misdemeanor.

• Arpalo had been convicted of the crime for disobeying a federal judge’s order to stop racial profiling in detaining “individuals suspected of being in the U.S illegally”.

Judicial appointments

• Article 2, S.2 “The president shall nominate and, by and with the advice and consent of the Senate shall appoint … Judges of the Supreme court”

• July 9 2017, Brett Kavanaugh was nominated by Trump

Powers of the Legislature

Overriding a presidential veto

• Article 1, S.7 grants the president authority to veto legislation passed by Congress. The constitution provides the president 10 days (excluding sundays) to act on legislation otherwise the legislation becomes law

• Congress can override the President’s decision if it musters the necessary two-thirds majority vote of each house.

• E.g., September 23 2016, Obama vetoed JASTA. The HoR and Senate mustered the 2/3 vote needed to overrule the president’s veto power, JASTA was approved in 2016.

Confirming judicial nominees

• Article 2, S.2 “The president shall nominate and, by and with the advice and consent of the Senate shall appoint … Judges of the Supreme court”

• When a president nominates a candidate, the nomination is sent to the Senate Judiciary Comittee (SJC) for consideration. SJC holds a hearing on the nominee, and the full Senate debates it.

• When the debate ends, the Senate votes on the nomination. A simple majority of all Senators present and voting is required for the judicial nominee to be confirmed.

Impeachment

• Article 1, S.2 grants the House of Representives (HoR) the “sole powers of impeachment”

• Article 1, S.3 grants the Senate the “sole power to try any impeachments” for any “treason, bribery, and all other high crimes and misdemeanors”.

• A simple majority is needed for an “article of impeachment” to be approved.

• A trial will be held with the Chief Justice presiding (Senate).

• A two-thirds vote from the Senate is needed to convict a president on any count. Conviction would lead to the removal of the president from office.

• E.g., President Trump was impeached in 2020 and 2021

Powers of the Judiciary

Original jurisdiction over the constitution (judicial review)

• Article 3, S.2 of the constitution states original jurisdiction with regard to the constitutionality of laws.

• Roe v. Wade - landmark legal decision issued on January 22 1973, where the U.S Supreme court struck down a Texas statute banning abortion, effectively legalizing the procedure across the U.S.

• The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Consitution.

Appellate jurisdiction (judicial review of executive orders)

• Article 2, S.2 of the constitution states that the Supreme Court’s appellate jurisdiction consists of appeals from the federal courts of appeal.

• Grants experienced judges authority to decide significant cases that set precedent.

• However, due to executive power to appoint judges to SC, political stacking could occur which could sway particular cases appealed to the SC

• E.g., Federal Court in Hawai’i found the Muslim ban unlawful due to religious discrimination clause of Title 8 of the United States code.

Judicial review:

• checks constitution to make sure law is lawful

• executive decisions

• interpreting statues - common law

Australia

High Court of Australia

Chapter 3 of the Constitution

S.71 - Creates the federal judiciary and vests ‘judicial power’ of the commonwealth in the HC (exclusive power of CW to create new federal courts.

• Establishes judicial independence by protecting it from other arms of govt. Definies judiciial powers called jurisdictions.

• Provides constitutional protection for the right to trial by jury for indictable federal offences (e.g., treason).

S.72 - Ensuring Judicial independence - Judges’s appointment, tenure and remuneration.

• Justices of the High court:

• (i) shall be appointed by the GG in Council

• (ii) shall not be removed except by GG in Council, on address from both Houses of Parliament in the same session, praying for such removal on the grounds of proved misbehaviour or incapacity (e.g., bribery)

• (iii) shall receive such remuneration as Parliament may fix, but may not be diminished during their continuance in office.

S.73 - Appellate jurisdiction.

• The High Court shall have jurisdiction with such exceptions to hear and determine appeals from all judgements, decrees, orders, and sentences;

• (i) of any Justices or Justices exercising the original jurisdiction of the High Court.

• (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State; or of any other court of any State from which at the establishment of the CW an appeal lies to the Queen in Council.

• (iii) of the Inter-State Commission, but as to questions of law only.

• The judgment of the High Court in all such cases shall be final and conclusive.

Appeals

• HCA will only hear appeals if Special Leave to Appeal is granted (no automatic right to appeal) and;

• There may be a miscarriage of justice

• A question of law which could create new common law

• There has been a conflict between the courts

• If the HCA rejects appeal, decision is final

S.75 - Original Jurisdiction of HCA

• Original Jurisdiction in all matters belongs to the HCA if:

• (i) arising under any treaty

• (ii) affecting consuls or other representitives of other countries

• (iii) in which the CW, or a person suing or being sued on behalf of the CW, is a party

• (iv) between States, or between residents of different States, or between a State and a resident of another State

• (v) in which a writ of Mandamus or prohibition or an injuction is sought against an officer of the CW.

• S.76 - Additional original jurisdiction - The parliament may make laws conferring original jurisdiction on the High Court in any matter:

• (i) arising under this Constitution or involving its interpretation

Common Law Cases

Timber Creek (Griffiths v Northern Territory (2019)

• Facts of case: High Court assessed the criteria for compensation following extinguishment of Native Title by compulsory acquisition of land under the Native Title Act (1993). In August 2016, the Federal Court awarded approximately $3.3 million in compensation to the Ngaliwurru and Nungali peoples. On, appeal total compensation was reduced to $2.9 million. HCA reduced the compensation to $2.5 million.

• Precedent: a precedent was set for assessing compensation for the loss (cultural and spiritual) of Native Title rights.

• Why common law: Common law case as the case was upholding the common law of the Native Title Act made by parliament.

Masson v Parson

• Facts of case: Massons sperm was used by Parsons to artificially inseminate herself. At time of conception, Massons believed he would father and support B. He was listed on the birth certificate and had a consistent role in B’s financial support, health, education and general welfare. In 2015 when Parsons wanted to move to New Zealand, Massons sought to prevent the move, and establish his parental responsibility. The question was whether Massons qualified as a legal parent for the purposes of the Family Law Act. The judgement of the trial was that the categories of parent were expansive and he could be considered a parent. It was appealed on the basis that there was an inconsistency between the Family Law Act and the NSW Act. He was found to be the child’s parent under the Family Law Act.

• Precedent: precedent was set as sperm donor as parent

• Why common law: upholding the common law of the Family Law Act

• Significant as definition of parent was broad. Parliamentary soveriegnty, they could codify, or abrogate the previous decision.

Constitutional Law Cases

Williams 1 (2012) - checking the executive

• Reason for case: interpreting S.61 of the Constitution (executive prerogative power) and questioning the funding of the National School Chaplaincy Program (NSCP)

• Decision: S.61 of the Constitution doesn’t allow the executive to spend money, it requires an act of parliament.

• Impact: Parliament must pass law (FMA/FFLA laws) to spend money. Around 5-10% of govt spending was questioned.

Williams 2 (2014) - checking the parliament

• Reason for case: FFLA/FMA laws unconstitutional

• Decision: Laws were tried to be passed off as benefits to students in S.51(xxiiA) however it was decided money spent on students did not benefit them the same as money given to students.

• Impact: Laws overruled, government used S.96 of Constitution to grant money to chaplains.

Roach - checking the parliament (implied right to vote)

• Challenged constitutionality of legislation which removed the right of all sentenced prisoners to vote in federal elections.

• Legislation challenged on the ground that it was contrary to S.7 and S.24 of the Constitution, which require that the Senate and the House of Representatives be ‘directly chosen by the people’;

• beyond the legislative powers of the Commonwealth;

• inconsistent with the implied rights to freedom of political participation and communication

• It was found unconstitutional as the limitation of voting restriction was not found to be proportionate in punishment, and prisoners with a sentence of 3 years or less were allowed to vote.

M70 - checks executive

• S.75 treaties - Refugee Convention. The migration act must follow refugee convention treaty. Chris Bowen tried for a 4000 people swap for 800 - found unlawful as they had not signed the treaty.

Governor General powers:

Legislative powers:

• GG exercises legislative powers on advice of Federal Executive Council (EXCO)

• S.5 > proclamation of parliamentary sessions within 30 days after an election.

• S.5 > proroguing or suspending parliament between sessions.

• S.28 > dissolving HoR.

• S.32 > issuing writs for a general election.

• S.57 > dissolving both houses in event of double dissolution election and convening a joint sitting of parliament.

• S.58 > granting or withholding Royal Assent.

Executive powers:

• S.62 > select and appoint Federal Executive Council (EXCO) and shall hold office during his pleasure

• S.63 > GG is to act on advice of the EXCO

• S.64 > appointment and dismissal of Ministers of State

• S.67 > appointment of other senior government officials

• S.68 > commander in chief of defence forces

• S.72 > appointing federal and HC judges

Express powers: used after consultation with PM and EXCO

• S.57 > Dissolution of parliament

• S.32 > issuing writs for election

• S.58 > granting Royal Assent

• S.72 > appointing federal and HC judges

Reserve powers: GG may exercise without ministerial advice

• S.64 > appoint PM if election results in hung parliament

• S.64 >dismiss PM if they have lost confidence of parliament

• S.64 > dismiss a PM or Minister when they are acting unlawfully

• S.5 & S.28 refuse to dissolve HoR despite requests from PM

Ceremonial roles:

• GG represents Australia on occasions such as Anzac Day.

• Recieves and entertains visiting heads of state, heads of government and prominant visitors of australia.

• Opening new sessions of CW parliament.

Non-ceremonial roles:

• Travelling in order to meet people.

• Accept partonage or various charitable, cultural and other organisations.

• Attending services and functions.

• Speaking at, and opening nation and international conferences.

• Presenting awards at major public functions.

1975 crisis

Timeline:

• October 14th - Rex Connor resigns after being shown to have misled parliament over ongoing negotiations for overseas loans. Replaced by Paul Keating.

• Metropolitan newspapers call on the govt to resign, Fraser (opposition) annouces Senate will delay money bills until Whitlam (PM) calls election.

• HoR passes motion of confidence in govt, whilst Parliament debates constitutional crisis of not being able to spend money.

• Novermber 3rd - Fraser offers to pass Supply bills provided Whitlam agrees to call election by May 1976, Whitlam rejects.

• November 10th - Chief Justice of High Court, Sir Garfield Barwick, former Liberal minister meets GG. Later gives Kerr letter that GG releases the next day to support kerr’s decision.

• November 11th - Whitlam threatens to call half-senate election if money bills are not passed. Kerr dismisses Whitlam, and commissions Fraser as Prime Minister. Senate passes money bills. Whitlam moves motion of no-confidence in Fraser, and it passes. Governor-General secretary reads the proclamation dissolving parliament.

Broken conventions:

• Senate vacancies being filled by members of an opposite party broke the convention that senate vacancies should be filled by a member of the same party as the previous senator, such as when NSW premier and QLD premier at the time appointed non-labor members to fill labor vacancies. (s.15)

• Fraser broke convention by blocking supply undermining the govt’s mandate to rule. S.53 - Senate may not initiate/amend appropriation (does not say block).

• Kerr broke convention by not following the PM’s wishes by refusing to call a half-senate election as whitlam requested (s.63 should follow PM/ministerial advice) however used reserve powers.

• Kerr broke convention by asking the Chief Justice of the High Court for advice, as he should only act on advice of the PM and ministers (EXCO) (s.63)

• Whitlam broke convention as he did not hold an election/resign when supply was blocked due to CMR/responsible govt.Westminster conventions dictate that the government should either resign or advise the Governor-General to call a double dissolution.

Functions of parliament

Representative funtion

• CW parliament - elected by people (s.7 & s.24) and thus represents the people.

• Political parties are elected representatives in the LH and act in the interests of their constituents

• Delegate representation - MP represent the people who elected them with little concern for their own views, values of conscience. Ensures the voice of the people is heard in the legislature.

• Trustee representation - MP uses their judgement to act on behalf of their constituents & their best interest. MPs are entrusted by those who elect them to make representations to parliament.

• In reality, voters mostly elect a party/leader they identify with rather than a delegate/trustee.

• Senate - sovereign state interest: senate should represent the interests of the aus states. However in reality, senate is a partisan house.

Legislative function:

• Parliament is a legislature that make laws that follow statutory process, are scrutinised in which speeches, debates and analysis in committees ensures good legislation, have a diversity of input that reflects the diversity of the Australian electorate and can be initiated by any member of parliament.

• In reality, the Westminster style of parliamentary executive creates a govt that can dominate the LH, therefore is dominated by the political executive. they can rush through legislation using the gag, guillotine and floodgating. this can compromise the scrutiny of bill and diversity of democratic input

Responsibility function

• govt must maintain support of LH - vote of no confidence by the house will dismiss a govt through CMR - in 1975 kerr (GG) interpreted Whitlam govts inability to pass money bill as loss of confidence.

• individual ministers can be dismissed through censure motions- holds them accountable for conduct.

• Question time - members can ask questions without notice. Can not mislead parliament.

• Scrutinising govt spending - executive can only spend money with accordance to the law.

• Standing and select committees - formed of members of parliament and have powerful investigative capacities. Public interest journalism committee.

• Dominance of political parties means they should always have the support of parliament > reduces responsibility function.

motions of no-confidence moved by the opposition or crossbench against govt tend to not be successful due to partisanship

Decline of parliament thesis

• the claim that modern parliaments do not efficiently perform their expected democratic functions, such as representation and accountability. It claims that parliament is simply a ‘rubber stamp’ that expresses the will of the executive.

• the representative function has declined as parliamentarian are forced be partisan, not delegates or trustees. majoritarian electoral system in the HoR reinforces two party system preventing diversity.

• the legislative function has declined due to dominance of the political executive in proposing an selecting bills for introduction to HoR, reducing PMBs, and guarantees passage of government bill, enables it to floodgate bill and gag &guillotine debates.

  Mandates

  

Influences on law making

Impact of political parties on law making

• political party - organised group of people who form to represent and promote world views and ideologies.

• major political party - significant influence over the passage of statutory legislation in Parliament, due to executive dominance in the HoR and party solidarity. it is any party with enough electoral support to forms govt.

• minor party - great influence in the senate, especially when they side with the opposition to force amendments to bills/prevent passage. it is any party that has enough support to regularly win some seats but not enough to form govt.

ABCC legislation (2015) - Turnbull introduced legislation that prevented union workers from entering construction sites and if they do, are found guilty before innocent. Passes in the house due to executive dominance but fails in senate. Turnbulls get GG to prorogue parliament, Senate votes against bill and DD occurs. Coalititon seats are lost. Major amendments made to bill and onus of proof removed.

Impact of pressure groups

• Pressure group - organised group of people which attempts to persuade a political party or government to undertake specific action.

• Sectional pressure group - pressure group that represents a particular ‘section’ of society and therefore acts in their own self-interest.

• Promotional pressure group - pressure group that advances a particular cause that is not self-interested but is motivated to achieve change on behalf of society as a whole.

• keeps governments more responsive to wishes of the community.

• are equipped to express the view of minority groups who lack a voice.

• offers an alternative source of advise to govt.

• Water Act (2007) - Howard govt offered 10billion to basin states to refer their power to manage the Murray Darling River to the CW, the Natyional Farmers federation didn’t agree with the legislation as there would be less water for irrigation and therefore less money for farmers. They lobbied for the Act to be reviewed and it was. Shows how pressure groups influence legislation.

Rowe v Electoral Commissioner (2010) - dealt with validity of legislation after it sought to restrict the time that people can enrol to vote. Rowe was funded by GetUp! to take the electoral commissioner to court. 100,000 people were ineligible to vote in 2010 election, but HC ruled that the electoral commissioner’s restrictions were invalid, Rowe won and all these people could vote at the 2010 election. Shows that pressure groups can influence court cases.

Impact of individuals

• William v Commonwealth (2012) - a girl went to a chaplain at her public school and was given advice about her problems, but the chaplain included religious advice. William asked the school to fire the chaplain because he was religious and worked at a public school, the school refused and he took the HC and argued that the funding of NSCP was invalid under section 61. He won, and the govt had to rewrite NSCP. Shows that individuals have the right to influence statutory legislation.

• Norrie v NSW registrar of births, deaths and marriages (2014) - Norrie wanted the gender on their birth certificate to be changed as they had come out as non-binary. NSW registrar refused to change it, so norrie filed a complaint with the Australian Human Rights Commission to the Court of Appeals. They won the case, so the registrar no longer restricts gender to solely male and female options. Shows how individuals impact common law

Accountability of the governor general

Accountability of the parliament

Elections