What is governance and its underlying principles Governance is the action or manner of governing a state, organisation etc. Governance in Australia is underpinned by democracy, the rule of law, the Australian constitution, the parliament, the courts The rule of law and its importance The rule of law underpins much of the legal system. It is upheld by through the justice system, the Australian constitution. The parliament, the courts and law reform. The rule of law essentially stipulates that all are equal before the law, and that the government is subject to the law. It is implied that there is an absence of an arbitrary executive, hence a system of checks and balances exists (separation of powers) What is a constitution A constitution is a set of rules that establishes the nature, function and limits of government. The Australian constitution was passed by British parliament and came into effect January 1st 1901. Key features of the Australian constitutions – what does it do It establishes the commonwealth parliament and outlines its structure, including how the house of representatives and senate are to be composed. Establishes the High Court of Australia and gives it powers to interpret the constitution. Sets out matters relating to the states. It facilitates the division of powers related to law-making by articulating the powers held by the commonwealth parliament. It outlines a mechanism for changing the constitution via referendum. It provides limited expressed rights for citizens Key sections of the Australian constitution Section 44 – Lists the grounds for disqualification on who may become a candidate for election to the parliament of Australia. Grounds include: Allegiance to a foreign power (dual citizenship issue) criminal convictions, bankrupt or insolvent, office of profit under the crown (entitlement to any form of financial benefit or salary), pecuniary interest in an agreement with the commonwealth Section 51 – Grants legislative powers to the Australian (commonwealth) parliament only when subject to the constitution. Powers outlined are considered exclusive powers, powers that are not are residual powers and retained by the states. Examples of powers granted include currency, military defence, marriage etc. Section 57 – concerns how deadlocks between the two houses of the Commonwealth parliament – the House of Representatives and the Senate – Should be resolved. When deadlocked the Governor -General can call a double dissolution which essentially calls a full election. Section 61 – Outlines that the executive power of the Commonwealth is vested in the Queen. The governor-general as the representative of the Queen wields the Queens vested powers, which extends to the execution and maintainece of the constitution and laws. Section 75 – Outlines the jurisdiction of the High court as residing over matters between residents of different states, the commonwealth or a representative is being sued, injunction sought against an officer of the commonwealth Section 109 – deals with the legislative inconsistency between federal and state laws and declares that federal laws override (“shall prevail”) inconsistent state laws. Section 128 – Outlines the procedure for changing the constitution. Determines that a proposed law to alter the constitution must be passed by an absolute majority in both Houses of commonwealth parliament. Once passed by the Houses it is voted on by Australian electors where to pass it must have a double majority. A double majority is a majority of electors in a majority of states. If passed by electors it is given to the GovernorGeneral for royal assent. What is the division of powers The division of powers is the constitutional concept that provides the allocation of lawmaking powers to the commonwealth government. It refers to the separation or allocation of law-making powers to Commonwealth and States. What are exclusive, concurrent and residual powers Exclusive: specific law-making powers given to the commonwealth set forth by sections 51 and 52 of the constitution. These are areas of national concern and as such jurisdiction to make laws on them are not given to the states. Concurrent: powers given to both the commonwealth and the states. Areas include marriage, divorce, and bankruptcy. The states have little power over marriage however because of the plethora of commonwealth legislation regarding marriage. Section 109 prevents states from making legislation inconsistent with federal laws. Residual: Law making powers not stipulated by the constitution, as such they are given to the states. For example. Education, criminal laws and health are examples of residual powers. What is section 109 of the constitution and its impact on law-making S109 provides a mechanism to resolve inconsistencies between State and Commonwealth legislation. S109 does not automatically operate such that states do not have the power to make law rather they do not have the power to pass inconsistent law. A state law must be challenged for s109 to apply. Strengths: promotes consistency and predictability. Limits states in relation to inconsistency not the entirety of the legislation. Weaknesses: does not limited states in response to residual powers. Does not restrict states if there is no overlap. Does not restrict a state if the law is not challenged or if a challenge fails. What is a referendum Changing the constitution is a difficult process by design. A referendum can only be passed with a double majority. Meaning a majority of people in a majority of states. This is meant to be a check on law-making power of parliament. It ensures that the interests of the population are considered before changes are made What is section 128 of the constitution and what is needed to change the constitution Section 128 stipulates how the constitution can be changed. Firstly, a bill is proposed into the House of Representatives where it must be passed by an absolute majority. Once passed it moves onto the Senate where it must be passed by an absolute majority once again. Once passed by both houses it is given to the Governor-General for royal assent. When royal assent is given it is proposed to electors in a referendum where it is phrased as a yes or no question. If a double majority is achieved and royal assent is given a second time then the referendum changes the constitution. What is a double majority A double majority means a majority of votes in a majority of states (hence 4 out of 6 states). What was the 1967 referendum Prior to 1967 section 51 of the constitution was worded in such a way that prevented the commonwealth from legislating on Indigenous people, it was a residual power. The referendum would change S 51. To allow the commonwealth to legislate on indigenous people, it would also give Indigenous people the same status of non-indigenous Australians by striking S 127 which discounted Indigenous people. The referendum was passed. Law making process at federal level Law making process at Queensland level 1. A minister draws up a Bill—a proposal for a new law or group of laws—and seeks approval from State Cabinet. The Bill has to fall within the minister’s area of responsibility. 2. If Cabinet approves, the Parliamentary Counsel (an expert on drafting legislation) prepares the Bill, which is then presented to the Cabinet and all government members of Parliament. 3. If approved, it is introduced into Parliament by the Minister for its ‘first reading’. At this stage the Bill is printed, and copies distributed to all members of Parliament. 4. The Bill then proceeds through a ‘second reading’ (at this stage the minister gives details of what the Bill is intended to achieve in the community) and then the Committee Stage. At this point, the Bill is discussed and debated by members, and sometimes changes are suggested and may be included in the Bill. 5. The ‘third reading’ then takes place. This does not usually involve any further debate, and Parliament then votes. Once the government gets the Bill through all stages in Parliament, it is sent to the Governor for royal assent (agreement by the Queen’s representative). When assent is given, the Bill becomes the law and then, instead of being called a Bill, it is described as an Act of Parliament. Necessary features for a just and equitable law Law must fairly balance individual rights with the community good, when it accords to our individual and community notions of justice. Laws must be clear so that citizens can understand it and judges can interpret and apply the law. Laws should be consistent and stable, so people have confidence in the law. Laws should be prospective (take effect in future). This gives people ample time to be aware of the change in law. Law should apply equally to all. Law should be capable of being enforced. What is the separation of powers and why is it important The separation of powers is a model of governance which divides the role of government. It is important because it stops power from being concentrated in one set of hands and helps to protect individual rights by providing checks and balances on the power of the commonwealth parliament. It separates government into three wings: - Executive: Governor-General, Prime Ministers and senior ministers, government departments - Legislative power: House of representatives, Senate - Judicial power: High Court, other federal courts What is the executive and what is their role The executive branch of government that puts laws and programs into effect. Every government department and agency and the ministers responsible for every government department are all part of the executive. What is the role and powers of the Governor-general The Governor-General is the Queens representative within the executive. The role of the governor-general is largely ceremonial. The Governor-General has the power to: grant royal assent to legislation, dissolve or refuse to dissolve parliament, appoint times for holding parliament, issuing writs for general elections, appoint or dismiss ministers. The governor general also has reserve powers giving them the ability to act independently. What is the importance of the governor-general as a part of the political system As Australia is a constitutional monarchy the Queen is the highest power, the GovernorGeneral takes upon the Queens powers. What is a double dissolution A double dissolution is the simultaneous termination of the House of Representatives and the Senate by the Governor-General and the calling of new election for both houses. These happen generally on the request of the Prime Minister when there is a deadlock. A governor-general may also call a joint sitting which is a meeting of both houses of parliament to make a decision on a proposed law which the two houses have previously not been able to agree upon. What is democracy, representative government and responsible government Democracy: government by the people, a form of government in which the supreme power is vested in the people and exercised for them by their elected agents under a free electoral system. Representative government: a basis for government where the citizens elect representatives to serve in the parliament and make decisions on their behalf. Responsible Government: a system where the government is answerable to elected representatives of the people for its actions, especially a system where the ministry is drawn from within the parliament from members of a political party or parties with the support of a majority of the lower house (in Australia, the House of Representatives), and must maintain the confidence of the majority of that house. What are the features of the House of Representatives and the Senate The Governor General and the Queen, the Senate and the House of Representatives make up the parliament of Australia. House of Representatives: 151 members. Each member represents 75,000-80,000 electors. Their role is to represent the interests of their constituents and to introduce, debate and the pass or reject proposed laws. The Senate: Made up of 76 senators. Each state elects 12 senators and the territories elect 2. The senate is meant to represent each state in equal members. Its purpose is to review and scrutinise bills sent to it from the House of Representatives. The senate does not have the power to amend bills but can ask the lower house to change the bill. The Senate makes sure that the Ministers of the Government are made accountable to the Parliament and the Australian people for their actions in a committee system. What are bicameral and unicameral systems? Unicameral systems are governments with only one house. Bicameral systems are governments with two houses. Queensland abolished its upper house, known as the legislative council, in 1922 based off the argument that it was obstructionist and inefficient. Now Queensland just has a Legislative Assembly with 89 members. What are the impacts of minority governments Minority governments occur when there is a hung parliament. Minority governments are when a political party will negotiate support with independents or smaller parties to form a stable government. How does the separation of powers impact the judiciary The Governor-General appoints judicial officers on the advice of the Ministry. The Chief Justice can sit in as the Queens representative when the Governor General is absent. What are the role of courts in law-making To interpret and decide on matters of law that come before them. They interpret and create law through statutory interpretation and the doctrine of precedent. Futhermore the legislative can choose to overrule or codify landmark cases. Importance of independent judiciary An independent judiciary is key as it works with the separation of powers to prevent power from being concentrated in one set of hands to help protect individual rights. Role of the High Court Acts as a guardian of the constitution. It acts as a check on any abused of power. It gives meaning to the Constitution and legislation Factors that impact a judge’s ability to make law: The Constitution and The Separation of Powers – The legislative can overrule decisions eliminating precedent. The executive and legislate can decide who are judges through legislation. Judicial Independence – Although theoretically independent Judges can be influenced by their own pecuniary interests, idealology and political affiliation. Hierarchy of Courts – Binding precedent creates rigidities that impedes upon the discretionary powers of lower courts. Common Versus Statute Law – Courts can encourage the passing of laws through landmark decisions where the parliament can choose to overrule or codify the principles of the decision. Judicial Activism – Conservative judges unlikely to bring about change whereas progressive judges can create disarray through encouraging change too much Access – Factors that impede one’s ability to access the law include time, cost, representation, court availability, adversarial nature. What is the doctrine of precedent and what is its impact on law The doctrine of precedent is a legal principle whereby the decisions made in higher courts must be followed by lower courts when ruling over sufficiently similar circumstances. There is binding and persuading precedent. What is the relationship between case law and legislation The relationship between common and statute law is crucial in maintain the effectiveness of the system. The legislative is however the supreme law-making body as it was selected by the people. The courts in some respects are subject to the parliament as their jurisdictions are set by parliament. Statute laws can override common law. Courts can declare a law made by parliament Ultra Vires which means beyond the scope of their lawmaking powers as outlined by the constitution. Parliament can decide to codify or overrule common law. What was the Mabo decision Eddie Mabo contested if the Indigenous people have sovereign power over there lands, if so, was the doctrine of terra nullius incorrectly applied? He claimed that native title should be recognised by courts. The High Court held that: - The Crown had acquired a title to the land and this title could not be challenged. - The aboriginal people were still entitled to a claim of their own - Aboriginal people’s claims could by voided - The court rejected the notion of ‘terra nullius’ The Keating government codified the decision through the Native Title Act What was the Wik decision Two pastoral leases existed on the Cape York peninsula. The Wik people made a claim for native title on a section of this territory. The issue was did the granting of two pastoral leases extinguish native title. It was held that pastoral leases did not extinguish native title. It-reaffirmed the Mabo view that native title can only be extinguished by written low or an Act of government which shows clear intention to extinguish. The Howard government chose to overrule this judgement through amends to the Native Title Act called the 10-point plan.
