Governance Theory - Legal Studies IA1

GOVERNANCE IS:

The process of interactions through the laws, norms, power or language of an organized society over a social system (family, tribe, formal or informal organization, a territory or across territories). It is done by the government of a state.

In lay terms, it could be described as the political processes that exist in and between formal institutions.

A variety of entities (known generically as governing bodies) can govern. Thee most formal is a government, a body whose sole responsibility and authority is to make binding decisions in a given geopolitical system (such as a state) by establishing laws.

POLITICS MATTER:

• Women were considered the property of their fathers and husbands

• Women were not allowed to own property, work or vote

• Until 1967, Aborigines were dealt with under the Flora and Fauna Act (Cth)

• Up until 1985 in Tasmania, it was not legally possible for a husband to rape his wife

• Fault based divorce until 1975 (Family Law Act)

• There was no such thing as a minimum wage and no regulations to prevent employers from exploiting their workers, including children

HISTORICALLY

• Slavery used to be legal and Queensland was arguably worst offender of Australian slave populations

• No such thing as 'Environmental Law'

• There were no provisions for designer drug related crimes

• There were no provisions to regulate technology

• Capital punishment, flogging and torture were legal means of punishment

• In 1997 Tasmania became the last state decriminalise being gay

THE RULE OF LAW

The rule of law is an important principle that is adhered to by every democratic society, including Australia, to ensure that all citizens respect the laws of that country.

It is the principle that all people are subject to law and are equal before the law.

No individual or group above the law.

• Equality before the law

• Rights of the accused/victim

• Checks and balances on power

• Presumption of innocence

• Right to remain silent

• Access to justice

• Freedom of speech

• Right to assemble

THE CONSTITUTION

The Australian Constitution is divided into 8 chapters and 128 sections. It sets out the basis for Australia's federal system of governance, the key features of which include:

1. An Australian Parliament and government, responsible for national decision-making and law-making.

2. A bicameral Parliament, including the King (represented by the Governor-General), the Senate and the House of Representatives.

3. 6 state governments, responsible for state matters

4. Power sharing arrangement between the Australian and state parliaments

5. The High Court of Australia, which is the final court of appeal. The High Court interprets the Constitution and decides its meaning, as well as settling disputes between the Australian and state governments.

EXCLUSIONS -

• The constitution does not cover all aspects of the governing of Australia

• For example, the Prime Minister and the Cabinet are not mentioned in the Constitution.

• The Prime Minister and the Cabinet operate by custom and tradition, similar to the British system from which they came.

• The RULE OF LAW is an important concept, but not contained with the Constitution.

RIGHTS-

• The Constitution does not detail many of the rights of the Australian people. Unlike the Constitution of the United States, Australia's does not include the bill of rights. In Australia these rights are protected by common law (made by the courts) and statute law (written law made by parliament)

STRUCTURE OF GOVERNMENT

The three levels of government include Local, State and Federal

• Each level of government has different areas of jurisdiction and responsibility

FEDERAL: All of Australia; taxation, immigration, marriage, currency

STATE: Individual states; transport and main roads, education, state law enforcement (criminal code act), healthcare

LOCAL: Suburbs/local areas; Brisbane City Council, pets, local roads, water, rubbish and electrical, etc

The Constitutional Division of Powers

Definition: Powers of the Federal and State Governments as provided by the Constitution

EXCLUSIVE POWER: Customs/excise duties, Medicare/defence/Currency/ External Affairs, Imports/ Exports. Such power is given to the Commonwealth Parliament (s51)

• Exclusive powers are powers that are exclusive to the federal government

CONCURRENT POWER: Transport/ Corporations/ Industrial Relations/ Most Taxation/ Trade and Commerce/ Environment/ Quarantine/ Copyright/ Marriage. Such power is given to Federal and State Governments (shared) (s109)

• Example of concurrent power: The role of the state is to maintain schools and provide a curriculum. The federal government however is the one who distributes the funds.

RESIDUAL POWER: All of the law making powers that the state has as colonies before 1901 are preserved, unless exclusively taken away by the constitution. Health/ Education/ Criminal / Law/ Property. Such power is given to State Government

• Any leftover powers that were not delegated to federal or states.

RULE OF LAW

Presumption of Innocence

Laws are Made in an Open and Transparent Way by the People

• Parliament conducts its business in public. This open system of government ensures transparency and provides opportunities for citizens to become involved in their own governance.

• Encourages civic engagement

• Strengthens democracy

• Critical in maintaining public democracy

• Gives members of society the right to participate in the creation of laws that regulate their behaviour and actions

Separation of Powers

• Legislature: make and changes law

• Judiciary: makes judgement on the law

• Executive: puts the law into action

• The division of power ensures no singular party can exploit the law

REFERENDUMS

S128 Aust Const

S128 – Mode of Altering the Constitution

• The Australian Constitution can only be changes by the referendum process set out in s128 of the AC

• A referendum is effectively a national ballot on a question to change the Australian Constitution

• Since 1906, when the first referendum was held, Australia has held 20 referendums in which 45 separate questions to change the Constitution have been put to the people. Only 8 changes have agreed to.

The process of changing the constitution goes like this

-> Referendum

-> 2 Houses of parliament need to approve the bill

-> one house prepares yes campaign, the other prepares the no campaign

-> the Australian Electoral Commission distributes the information to the constitution

-> Everyone votes

How do you succeed with a referendum?

There needs to be a double majority, meaning;

• 4 out of 6 states are overwhelmingly yes

• More than 50% of the state votes yes

The Three Arms of the Separation of Powers

• Judiciary (adjudicate on the law)

• Legislative (make legislation via parliament)

• Executive Government (administrative law)

Making a QLD Act of Parliament

Law, governance and change

1. Need for law identified

• Influences on governments to make laws come from many and varied sources:

  • Community/ interest group pressures

  • Electoral mandate

  • The need to continue or enhance existing laws

  • Party policy

  • Events, both nationally and internationally

  • Election campaign promises

1. Draft Bill

• Cabinet approves the drafting the Bill

• The proposed Bill is drafted and then timetabled for its first reading in the Legislative Assembly. The Bill is then presented by the minister responsible for it

1. First Reading

• The formal first reading of the Bill takes place by the clerk of the Parliament, who reads out the title of the Bill.

• Each MP receives a copy of the proposed Bill

1. Second Reading

• The minister then speaks about the proposed Bill, elaborating on its general aims

• Debate over the Bill takes place

• This stage is completed by the Clerk reading the title of the Bill for a second

1. Committee of the Whole

• The Bill is examined in detail

• Changes can be made to the proposed Bill

• These are called amendments

1. Third Reading

• The third reading is usually a formality

• The title is read out again and voted on

1. Royal Assent

• If the Bill is passed, it is then presented to the governor for formal approval

• The Bill now becomes an Act of Parliament

• An Act normally comes into effect on the 28th day after it has received assent. Some Acts may even specify a specific starting date.

FEDERAL LEGISLATION-

• For a Bill to become an Act of Parliament, it needs to be agreed upon by both houses

• The first reading through to third reading occur both in the House of Reps and the Senate

• Governor-General gives royal assent

When a certain piece of legislation becomes out of date, meaning it is no longer relevant, parliament can be repeal (do away) with the Act.

On other occasions, only do some parts of an Act may be out dated, in which case the Act can just be amended.

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Parliament (Legislative - make laws/legislations)

Executive (Government - enact/administer the laws/ put them into effect)

Judiciary (Courts - specifically the high court -

THE ROLE OF THE HIGH COURT...

The Constitution established the High Court as guardians of the constitution

1. More specifically: to hear disputes arising from interpretation of the constitution

2. It is also the Ultimate Court of Appeal for all Aus Courts - final avenue for appeal

3. Hear disputes between state v state

4. Hear disputes state v cth

5. Hear individual v commonwealth

6. Interpretation of international treaties

This role is hugely important to the governance of Australia because:

• All its decisions are binding precent on all citizens in the country, and

• It decides what the meaning of words in the Constitution are, binding Commonwealth and State Governments

THE ROLE OF THE JUDICIARY...

• Judicial power gives the courts the ability to:

  • Interpret legislation

  • Apply legislation

  • Courts pay an important role in holding governments and Ministers accountable for their decisions

Comparing the role of parliament and the courts

MABO

• The Mabo case was a significant legal case in Australia that recognised the land rights of the Meriam people, traditional owners of the Murray Islands (which include the islands of Mer, Duaer and Wier) in the Torres Strait

• The Mabo Case was successful in overturning the myth that at the time of colonisation Australia was 'terra nullius' no mans land/ land belonging to no one

• The High Court recognised too the fact that Indigenous peoples had lived in Australia for thousands of years and enjoyed right to their land according to their own laws and customs. Twelve months later the Native Title Act 1993 (Qld) was passed

• Five Meriam people mounted the case; Eddie Kioki Mabo was named the plaintiff

MABO'S ARGUEMENT

• The Mabo Case challenged the existing Australian legal system from 2 perspectives

• On the assumption that Aboriginal and Torres Strait Islander peoples had no concept of land ownership before the arrival of British colonisers in 1788 (terra nullius)

• That sovereignty delivered complete ownership of all land in the new Colony to the Crown, abolishing any existing right that may have existed previously

THE DECISION

• On June 3rd 1992 the high court judges upheld the claim and ruled that Australia was not Terra Nullius.

SIGNIFICANCE

• The new doctrine of native title replaced the doctrine of terra nullius

• In recognising that Indigenous peoples in Australia had prior rights to land, the Court held that these rights where they exist today, will have the protection of the Australian law

• The High Court decision in the Mabo v Queensland (No.2) altered the foundation of the land law in Australia and the following year the Native Title Act 1993 (Cth)  was passed through the Aus Parliament. This opened the way for claims by Aboriginal and Torres Strait Islander peoples to their traditional rights so land and compensation.

REPRESENTATIVE GOVERNMENT

Democracy is...

Government powered by the people, a form of government in which the supreme power is vested in the people and exercised by them or their elected agents under a free electoral system

MAGNA CARTA

The seeds of English democracy were sown in the Magna Carta (1215) which attempted to give the people a voice and to establish rights

The members of parliament in the English Parliament were not elected by a vote of the people for many years.

Initially those chosen by knights and rich business people who had funds to acquire seats in parliament

Gradually rules changed - only male property owners were allowed to vote

AUSTRALIA

In the decade prior to the Constitution, all Australian states had been granted responsible government by the British government and had passed laws establishing voting systems for Upper and Lower House of Parliament

In 1901 the first federal election of the Commonwealth Parliament was held under state legislation and Edmund Barton became Australia's first Prime Minister

Most men over 21 could vote in NSW, Victoria, Queensland and Tasmania. In South Australia and Western Australia, men and women over 21 could vote.

REPRESENTATIVE GOVERNMENT

An electoral system where citizens vote to elect people to represent their interests and concerns. Those elected meet to debate and  make laws on behalf of the whole community or society, instead of the people voting directly on laws and other debates.

DEMOCRACY AND THE CONSTITUTION

The Constitution requires both houses of Federal Parliament to be 'directly chosen by the people'. The power of government was to come from the Australian people by delegating the task of government to chosen representatives.

REPRESENTATIVE GOVERNMENT

Australian Constitution

S7 -

• Senators elected directly by the people

• Regular elections required

S24

• House of representatives members elected directly by the people

• Regular elections required

S28

• Duration of term of HoR 3 years and no longer

• Can be dissolved sooner by GG

The Australian political system is one in which the people elect members of Parliament o represent them, hence we have a system of representative government. These representatives meet in Parliament and perform a number of functions. Representative government exist where the people delegate the tasks of government to representatives chose at regular elections

All Australian citizens aged 18 years and older vote for people to represents them in both houses of parliament.

HOUSE OF REPRESENTATIVES

• 151 Australian citizens in the House of Reps

• Represent the interests of their constituents (the members of their electorates); and

• Introduce, debate and then pass or reject proposed laws

THE SENATE

Is made up of 76 senators. The citizens of each of the six states of Australia elect 12 senators to represent them, while the citizens of the Northern Territory and the Australian Capitol Territory (ACT) to elect two senators each.

Law, Governance and Change

The Concept of Responsible Government

The main principal of responsible government is that the executive is responsible to the legislature.

This concept outlines that the government should be responsible to the Parliament, to ensure that the government does not abuse its power; the government must retain the support of the majority of members of the House of Representatives to stay in power.

Responsible government means that a party must maintain the support of the majority of members in the House of Representatives in order to remain in government.

THE ROLE OF PARLIAMENT;

• The definition of responsible government encompasses concepts such as accountability and transparency - key features of the rule of law

• Responsible government ensues that the Ministers (the executive) are held accountable to the Parliament (the legislature). This is the separation of powers in action - an important feature of the rule of law.

• This accountability is maintained in many different ways. The government can only remain in power if it holds the confidence of the Parliament (the House of Reps)

There are 5 main methods of ensuring accountability in government:-

• Responsible Ministers

• Open Government

• The Opposition

• The Governor-General

• The Judiciary

Responsible Ministers -

In order to continue to govern as part of the Executive, Ministers must maintain the confidence of the Parliament.  Holding Ministers responsible for their actions, policy decisions and the departments they oversee is also how we see accountability and responsible government

Open Government  -

Like the court system, Australian has an open system of government. This means anyone can visit Parliament and observe law being made.

This allows for accountability and transparency.

The public is also able to have their say on a Bill by making a submission, attending a government inquiry or protesting against a government decision.

It also means that the media can report and openly criticise the government, law or policy.

The Opposition -

The Opposition is the largest political party (or coalition) that does not hold the majority of seats in the House of Representatives.

It plays an important role in keeping the government accountable and transparent.

The Opposition:

• Scrutinises the government’s decisions

• Criticises and questions the governments actions

• Debates bills

• Provides Australians with an alternative policy

• Sits on committees that review legislation or government policy