Politics and law chapter 1 notes

chapter 1 notes:

• democracy: a form of government where people govern themselves, originating from Athens were it was decided that the citizens would govern themselves

• sovereignty is the right to govern a territory and its people

• sovereignty is vested in its rulers and the source of political and legal power

• in democracies sovereignty is vested in the people, and so the people rule themselves

• direct democracies are when all citizens participate, which only works with small numbers of participating citizens

• liberalism is the idea that all people have basic entitlements including political and legal rights and freedoms

• a full democracy is only possible through a liberal one

• the operating principles of a liberal democracy include majority rule, equality of political rights, political freedoms and political participation

• direct democracy is incapable of functioning through these principles (liberal)

• representative democracy allows populations to enjoy equal political rights and freedoms to participate indirectly and directly in their government

• there are different forms of representative democracies such as Australia’s and the UK’s-, the constitutional monarchy

• The US has a democratic republic, however due to recent evens their level of being a democratic nation has lowered**

• the political organisation of the world is based on nation states, nation states possess sovereignty

• those who don’t vest national sovereignty in their citizens are non democracies or autocracies

• Representative government: representative democracy creates a representative government

• citizens are sovereign in democracies

• in direct democracies, people exercise their sovereignty personally

• in representative democracies elected bodies exercise popular sovereignty and these bodies are accountable to citizens for the performance of the government

• elected representative bodies are called parliaments, congresses or assemblies

• the commonwealth parliament in australia is a nationally elected representative body (there are also state and territory parliaments)

• parliaments are the most important part of representative democracies because they embody popular sovereignty and express the majority rule

• parliaments are sovereign as-well

• parliamentary sovereignty means parliament is superior to all other bodies within the legal system such as the courts and governments

• parliament's perform the essential functions of representative government as they represent the people who elect them and they make laws

• in australia parliaments form the government and hold it to account between elections (responsible government)

• elected parliamentarians represent 10’s of thousands of citizens each, and are called representatives

• when not in parliament they are in their electorates which is the area they represent, e.g., sam lim for tagney. they are also available to their constituents, which is the members of the public who live in the electorate represented by their parliamentarians

• when in court these people aren't referred to by their name but rather the minister of the electorate they are from

• the commonwealth parliament represents 16 million voting Australians

• voting rights are an example of political rights that belong to citizens (Liberal democracy)

• members of parliament are also called legislators as they are law makers

• since they represent a majority of electors the laws made by parliament represent the majority

• elections are a necessity for representative governments

• elections allow accountability for parliaments and governments

• accountability ensures elected officials remain responsible

• free, fair and regular elections are essential for a truly representative government in a liberal democracy

• all citizens of 18 years of age and above without serious crimes must participant

• compulsory voting enhances political participation, ensuring a majority rule by making parliaments more representative and governments responsible to citizens

• elections give these powers a democratic authority to make and carry out laws

• political freedoms facilitate liberal democracy

• political freedoms include speech and they allow people to express ideas and communicate with others without censorship

• in a liberal democracy, people may participate in representative government through voting however joining political groups avenues for greater participation for politically engaged citizens

• political rights and freedoms greatly enhance popular participation, and should be universal and equal in a liberal democracy

The structure of a representative government

• parliament and governments are two branches in a system of government, the courts are the third branch

• courts are not representative

• parliaments are directly elected

• governments may be directly elected or chosen by a representative parliament (indirectly elected)

• judges are not elected and instead are appointed by the government

• only 2 government branches represent popular majorities

Liberal democracy:

• liberal checks majority rule by insisting on respect for rights and freedoms of everyone including minorities

• liberal democracy has safeguards to prevent majority rule from degenerating into a tyranny of the majority (overrule of the majority)

• constitutionalism is a safeguard to this, the principle that power should be limited instead of absolute

• laws also limit government power, a constitution is a type of law

• al political and legal system governed by laws exhibits the rule of law

• citizens possess political rights and freedoms equally

• a democracy that doesn’t protect the minorities would be ‘illiberal’

• illiberal democracies are those that are flawed or a hybrid regime

operating principles of liberal democracy

• there are four main operating principles:

1. majority rule

2. equality of political rights

3. political freedom

4. political participation

• majority rule: the most fundamental principle of democracy

• majority rules means a legislature is elected to make laws reflecting the popular will, and an executive (known as a government) is elected to execute and carry out the laws

• majority rules in the legislative branch: citizens use their political rights to vote in parliamentary elections to choose representatives who will make laws in parliament (legislative makes the laws)

• majority rule in the executive branch: achieved when a government is formed by and within its representative parliament. The government in Australia is the coalition of parties with a majority of seats in the lower house of parliament

• majority rule in referendums and plebiscites: a double majority (a majority of electors and a majority of electors in a majority of states is required for formal alterations to the Australian constitution, electors vote yes or no for constitutional change in a referendum, and voting is compulsory, adopted from Switzerland) (a plebiscite is a yes or no vote on a question, they are non binding that help parliaments deal with issues by directly putting a question citizens, voting is often voluntary). referendums are direct democracy where political participation of all is required and encouraged

• equality of political rights: they are entitlements and essential to citizens abilities to govern themselves, enabling political participation in government. ‘political rights enable political participation in government

• citizens must be able to take part in government, two political rights that are fundamental is the right to vote and the right ho hold public office as an elected official

• Australia grants citizens voting rights but not permanent residents even if they’ve lived there for many years

• permanent residents become citizens in order to quality for the political right to vote

• an essential featUre of liberal democracy is citizens equality of political rights

• each elector’s vote has the same value as all others

• political freedoms: entitlements enabling people to participate in government

• political freedoms include the freedoms of speech, assembly, association and press

• in Australia political freedom is borad and mainly protected through common law

• Australians have an implied constitutional right to protect communication but not as a constitutional right to free speech

• Australia law sets limits about what can be expressed, e.g., no racial vilification that is hatred or unlawful

• democracies may limit freedom based on preventing harm to other’s freedoms

• freedoms of assembly and association enable people to take collective political actions

• political parties and pressure groups are associations formed to achieve political change. The liberal and labor parties, trade unions, and business and environment groups are examples as they increase political participation in the government

• political participation: occurs when people exercise political rights and freedoms to influence government and law making actively

• theres many ways for citizens to participation, voting, joining pressure groups or parties, writing to the parliamentarians and parties, protesting etc

• a healthy liberal democracy maximises opportunities for political participation

additional principles of a liberal democracy:

• rule of law: a fundamental feature

• the elements of the rule of law include

1. equality of all before the law

2. government power is subject to law

3. the law is known, clear, consistent coherent in futuro

4. independent and impartial judiciary interprets the law, holding power to account and protect rights and freedoms

• the rule of laws most well understood characteristic is that laws apply universally

• all members of society including those with power, wealth or influence must be subject

• the law should be blind to power wealth and privilege and not discriminate against the vulnerable

• the rule of law protects citizens from abuses of power

• the rule of law depends on the design of a representative liberal democratic system

• liberal structures reflect principles and doctrines designed to limit power and make it accountable

laws are universal

• the rule of law exists because laws apply universallly over the terriotry and people within the jurisdiction of the sovereign partliament which made them

• laws override all othe rforms of social controls and overrides customs and traditions

• the rule of law exists when laws reflect morals

• laws override rules

laws should be known, clear, consistent and coherent

• people have a right and duty to know the law

• secret laws breach the rule of law and people must know it in able to behave lawfully

• new laws must be published A(in the government gazette)

• freedom of the press means that changes to the law are freely discussed

• laws should not be back dated (must be in futuro), its not unconstitutional but it is rare

• laws must be clear so they are understandable

judicial independence:

• means that courts are entirely separate from parliaments and governments

• it protects judges from pressure to make decisions

• impartial judges and magistrates interpret the law and must provide reasons so that higher courts can check them to ensure that the laws were applied correctly

• separating the police’s executive power from the judicial power protects the accused

equality before the law:

• the rule of law exists when laws protect equality and political rights and freedoms

• legal rights such as the presumption of innocent and the right of silence are essential aspects of the rule of law because they guard agains the use of arbitrary power

• between 2018-2020 Australia faced problems regarding the accessibility and affordability of civil justice

• issues of discrimination in legal justice and rights and increased questions about the corruption of legislators rose

• Australia had a good record of ensuring the universality of law (equality of all before the law) as individuals with power who have broken the law have been charged and convicted, e.g., Craig Thomson a former parliamentarian was convicted of misusing funds