Unit 3 PAL

Coercive federalism

A federal system in which the central level of government possesses and exercises significantly more power than the regional governments. Australian federalism can be coercive when the Commonwealth uses legislative and financial powers to direct State policy in areas of residual power.

Coordinate federalism

A federal system in which the two levels of government work independently within their own spheres of power. Generally has weak instituitons of federalism where the two levels come together to coordinate their relatively autonomous operations.

Cooperative federalism

A federal system in which two levels of government work together to achieve outcomes, and requires strong institutions of federalism which allow two levels to come together to cooperate.

Exclusive powers

Can be exercised only by the Federal government (eg- s90 the power to collect customs and excise duties)

Section 92

Trade within the Commonwealth to be free "Customs, trade, commerce...among the States...shall be absolutely free." Guarantees free interstate trade amongst Commonwealth.

Non-ceremonial roles

Travelling to meet the people Accepting patronage of charitable/cultural organisations Attending functions and services Attending national and international conferences Giving awards at major public functions Red Cross patronage traditionally goes to wife

Private Members' Bills

bills introduced by backbench MPs rather than by government ministers

Constitutional Law

body of legal precedents made up of judgements on the interpretation of the constitution of the High Court, and disputes concerning the Constitution.

Section 50

"Each House of the Parliament may make rules and orders with respect to: (i) the mode in which its powers, privileges, and immunities may be exercised and upheld; (ii) the order and conduct of its business and proceedings either separately or jointly with the other House." Standing orders/processes of Parliament

Section 3

"Salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office."

Covering Clauses

"Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to units in one indissoluble Federal Commonwealth under the Crown of the united Kingdom... Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and the Commons, in this Parliament assembled, and by the authority of the same..." Sovereignty, constitutional monarchy

Parliamentary privilege

... enables Parliament to carry out effectively its functions: to inquire, to debate and to legislate, .... this assists and protects these functions. ... freedom of parliamentary debates and proceedings from question and impeachment in the courts, the most significant effect of which is that members of Parliament cannot be sued or prosecuted for anything they say in debate in the houses. The principal powers are the power to compel the attendance of witnesses, the giving of evidence and the production of documents, and to adjudge and punish contempts of the house. Senator Jacqui Lambie accusing department of defence of abuse coverups under privilege in 2016 Section 49 of the Constitution allows Parliament to determine its own privileges

Westminster conventions

1. The executive (government) must enjoy the majority support of the lower house- the government is chosen by the lower house and must resign if it loses the confidence of that house. 2. The PM must be from the HoR and the Cabinet selected from members of Parliament (Senate or HoR) 3. Ministers must resign if they cannot publicly support cabinet decisions (known as "cabinet solidarity") 4. Individual ministers must resign if they are the subject of a successful censure motion passed by the lower house on the grounds of corruption, misuse of office, extremely poor behaviour that undermine the ministerial office... 5. Ministers are accountable to Parliament for the actions of officials under their control. 6. Appointed officials (including public servants) are loyal to the current minister 7. The head of state (Queen in Britain represented by Governor General in Australia) acts of the advice of the head of government (PM) 8. Confidentiality of the Cabinet room (meetings are confidential)

Question Time

... standing orders allow for two types of questions to be asked of Ministers—oral questions (without notice) and written questions (on notice). Oral questions are those asked in the House during the period commonly known as Question Time. These questions are expected to be answered by Ministers immediately. QT provides an opportunity for Ministers to display their political skills and defend the government. The opposition aim to highlight weaknesses in the government. Thus Question Time can be seen as the Government and the alternative government both seeking to demonstrate to the House and to the public that their ability to govern is better than that of their opponentsThe importance of Question Time is emphasised by the fact that at no other time in a normal sitting day is the House so well attended. Question Time is usually an occasion of heightened interest to the news media and visitors to the public galleries, which are generally full to capacity at this time. Question Time is shown on national television and excerpts are often included in nightly television news bulletins.The government and opposition parties alternate questions, with the former asking ministers 'dorothy dixer' questions - questions aimed at allowing ministers the chance to highlight strengths and attack the opposition. This practice, along with the interpretation of standing orders by the Speaker (such as the requirement that answers be relevant to the question) undermines the effectiveness of QT.

Quorum

...the minimum number of Members required to be present in the House to constitute a meeting of the House. It is set by law to be one-fifth of the total membership. With 150 Members, this makes a quorum of thirty, including the occupant of the Chair.This is to stop the government from 'sneaking through' laws when no one is in the chamber. Routinely virtually all MPs are not present on the floor, but during QT and for formal votes that are contentious most would be present.

Speaker of the House of Representatives

...the principal office holder in the House of Representatives. He or she is the House's representative or spokesman and chairs its meetings. They are elected from among the 150 Members of the House (in effect a government appointment). They makes sure that Members obey the rules (standing orders) of the House and follow the correct procedures. They are, by convention, expected to maintain a façade of independence and neutrality (though in practice they usually support the government) The current Speaker is the Honourable Tony Smith MP. He was elected as Speaker on 10 August 2015.

Why are reserve powers so rarely used?

1. Convention: common practice not to use reserve powers as they are at the GG's discretion (in reality, he acts on advice of PM) 2. Legitimacy: GG is not democratically elected 3. Need for neutrality: when reserve powers are used, they have political repercussions which will favour one side or another. Just like the Queen, the GG is meant to be impartial.

Roles of the Opposition

1. Holding executive power to account 2. Being a viable alternative to government

Westminster chain of accountability

1. Individual ministerial responsibility: an individual minister is responsible to Parliament for the conduct of their portfolios. Theoretically, the Parliament can sack a Minister. 2. Collective Ministerial responsibility: Just as an individual minister is accountable, so to is the entire executive (cabinet) This empowers the HoR to dismiss a ministry, thereby sacking the whole government.

Overcoming limitations

1. Third party research: think tanks, accounting firms, academic research to provide detailed analysis o policy- Shorted commissioned National Centre for Social and Economic Modelling to analyse Abbott 2015 budget - usually dismissed as lacking objectivity and independence. 2. Reforms: attempts to be made such as the provision of additional resources or Charter of Budget Honesty but not in government's interests, so don't do it.

Westminster chain of accountability

1. people directly elect Parliament in a general election. 2. lower house chooses a government by giving its confidence to a group of ministers who form a Cabinet 3. indirectly elected Cabinet Ministers head the appointed government departments and provide democratically mandated policy direction. 4. Government departments implement mandated policy under Minister's direction and provide expert advice to Minister. 5. Parliament, representing the people, holds Ministers collectively accountable for the administration of government under Westminster convention.

Aftermath

1977 amendment to section 15: only the same party can be appointed to casual vacancies Scope of power for the GG unclear, incited republic debate

Collective ministerial responsibility

A Westminster convention of responsible government by which an entire executive government may be held to account by the House of Representatives.

Individual Ministerial Responsibility

A Westminster convention of responsible parliamentary government by which a minister may be held to account by the House of Representatives. Part of the Parliament's 'responsibility function'. Ministers are expected to take responsibility for the administration of their departments, the actions of their staff and themselves. Difficult to interpret/enforce in size and complexity of modern government. Political support of PM crucial in survival. Sen. Bridget McKenzie forced to retire over sports rorts scandal Feb 2 2020.

Collective Ministerial Responsibility

A Westminster convention of responsible parliamentary government by which an entire executive government may be held to account by the House of Representatives. Part of the parliament's 'responsibility function'. Westminster system requires that the ministry must command support of lower house. Reinforced by the requirement of Section 53 that all appropriation bills must originate in the House of Representatives. Without the ability to secure "supply" from the House of Representatives, a ministry (in its entirety) is obliged to resign or call an election. Last occurred 1941.

Cabinet solidarity

A Westminster convention that the cabinet presents as a united government. All ministers are bound by the convention to publicly support the cabinet's position on all issues. If a Minister cannot publicly support cabinet they are required by convention to resign. Allows the executive to nearly always get its way with the parliament. 1989 Gary Punch resignation over decision to extend runway in his electorate, Barton. * Barnaby Joyce not sacked when he spoke out against mine being built in his electorate New England in 2015

Cabinet secrecy

A Westminster convention that the deliberations and discussions of cabinet should be held out of public view. It allows robust and frank discussion within cabinet. It also allowed cabinet to reach a single position and present as a united government. Private individuals/organisations could benefit from advance knowledge of government plans - secrecy maintains justice and fairness. Release of Gaetjens report - documents remain secret for 30 years (30 year rule) Michaelia Cash leak AFP raid to media. Abbott government broke this convention when it allowed the release of cabinet documents from the Rudd Government about the failed Home Insulation scheme

Constitutional monarchy

A form of government in which the head of state is an inherited position but whose powers are limited by a written constitution or by unwritten constitutional conventions. In Australia, Queen limited by by Constitution.

Division of powers

A formal arrangement allocating the responsibilities of government between the different levels of government in a federation. This division is sometimes called the "federal balance".

Division

A formal process in Parliament whereby members' votes are counted - usually motions are passed without this being required (the Speaker 'sums up' the numbers), but any MP can request a formal division on any motion being put to parliament - this is not usual, since it takes a few minutes and the result is normally a forgone conclusion - MPs have a few minutes to enter the chamber (after the 'bells are rung') before the 'doors are locked' and then each side is counted by two MPs chosen by the speaker (traditionally one government, one opposition) - members vote by physically moving to the left (voting against) or right (voting for) of the speaker.

No confidence motion

A formal vote by the House of Representatives expressing a lack of support for the Prime Minister - if successful, this would trigger removal of the PM by the GG (resignation of the government) OR would require the government to advise the dissolution of the house - leading to an election - under this circumstance, the GG would probably have discretion: if an alternative PM could demonstrate they have the support of the house an election would be unlikely. Moved many times by the Abbott opposition (as it allowed for a debate on the motion) but never successfully. The only successful examples was 1975, though 1941 and 1931 similar motions were made with the same effect.

Censure motion

A formal vote by the Parliament to highlight/note a breach of ministerial standards by a particular minister - can be personal misconduct or misconduct as a minister. A Senate censure has little effect (mainly media attention), a House censure would trigger the express power of the GG to remove a minister under IMR - this has never occurred.

Guillotine Motion

A motion passed in a house of parliament to impose a time limit on debate. A vote to limit debate on a particular issue or law -this can be used by the government to stifle debate.

Gag motion

A motion passed in the house of parliament to curtail further debate. During the Second Reading Debate on a Bill the government may use one of its members (either a Minister or a backbencher) to move a motion that the Bill be put to the vote. Because the government has a majority of seats, gag motions will almost always pass in reality.

Standing Committee

A permanent parliamentary committee tasked with overseeing a particular area of government or with an ongoing function (eg. reviewing bills for human rights breaches)- can be drawn from either house, Senate or a joint (both houses); its membership reflects the political composition of the house from which it was formed; The generally have the power to investigate (using parliamentary privilege) and recommend (to the house/Senate); Privileges Committee, Selection of Bills Committee, Regulation & Ordinances Committee (review delegated legislation), Intelligence & Security Committee

Dissolution of Parliament & Writs for General Election

A power of the GG under s. 28, can be a reserve power (under special circumstances) but generally an express power, must take place within 3 years of a Parliament sitting (max term) and automatically trigger an election (issuing of writs under s.32 or s.57) Dissolution of 45th parliament in preparation for election of 46th parliament in 2019

Parliament*

A representative body that has responsibilities that include the initiation and passage of legislation. Federal Parliament consists of the Queen represented by the governor General, Senate and the House of Representatives.

Hung Parliament/minority government

A situation in the House of Reps where the government does not have a clear majority of members and depends on the continued support of the cross bench to remain in government. 1939-41, 2010-2013 (Gillard) This is rare, but seems to be more common at the state level (QLD, VIC, TAS all have seen this in the past 10 years)

Balance of Power

A situation in the Senate where neither major party holds a majority - the cross bench holds the 'balance of power' because they can side with either major party to swing the result of a vote one way or another.

Conscience Vote

A situation where the government (and/or the opposition) release its MPs from party discipline and allow MPs to vote as they wish on an issue - significantly, this also releases Ministers from the requirement to support the government (to be precise, with respect to a conscience vote the government has no position to support) The ALP has a policy of allowing a conscience vote on same sex marriage laws,

Federation Chamber

A special committee of the House of Representatives. Its membership comprises the whole of the House and therefore all members of the House of Representatives.

Supply

A supply bill authorises the expenditure of funds on government activities for the whole or part of the financial year. It is introduced by the government as part of parliament's involvement in the raising and spending of public funds. The failure of a supply bill to pass (the house) -- a denial of supply -- is regarded as a matter of confidence and the government must resign or request the dissolution of parliament, triggering a general election.

Federalism

A system of government in which sovereignty is geographically divided between one central and two or more regional governments, each sovereign within their own sphere.

Mirror model of representation

A view of what representatives should be rather than how they should behave. This states that MPs should be broadly representative of the community they are elected from (demographically) - ie. by age, sex, sexual orientation, race, religion, wealth, occupation, etc. The ALP aspirational goal of 40/40/20 (men/women/either); Turnbull promotion of women to Cabinet contrasted to Abbott

Parliamentary Procedures: Censure Motions, No Confidence

Actions by which the Parliament expresses its disapproval of a specific action by a member of the executive or its general loss of confidence in the executive as a collective. Motions in Senate do not force resignation. Censure motions are the mechanism by which the convention of IMR is enacted. Highlight a specific act of government, usually by Leader of Opposition. No confidence motions aimed at government. May be direct vote against government, defeat of core bill, money bill, or loss of government control over business. Obliged by WC to resign if they lose the vote. Executive dominance = not effective. Potential to embarrass and draw negative attention to government and its actions is the real outcome.

Section 76

Additional original jurisdiction The Parliament may make laws conferring original jurisdiction of tterm-39he High Court of any matters arising under this Constitution, or involving its interpretation; arising under any laws made by Parliament

Private Members

All Members of Parliament who do not form part of the Ministry (and therefore the Executive) are Private members. This includes the Shadow Ministry and the Leader of the Opposition, as well as government backbenchers. Any Bill that the Opposition proposes or initiates in the House is, thus, a "Private Members' Bill".

Consensus decision making

All Ministers agree with the decision.

Residual powers

All government powers not specified or enumerated in the Constitution. Exercised by the States. Includes primary and secondary education, health.

Private Members' Bill

Almost all legislation that is successful is introduced by the government (minister), however any MP may initiate a bill - when this is done by a backbencher it is a private member's bill. Liberal MP Warren Entsch introduced a PMB to recognise same sex marriage in 2015;

State's House/ House of Review

Alternative names for the Senate - originally intended as a chamber for states' interests to be considered, it has never really fulfilled this function. The Senate was also famously referred to as 'unrepresentative swill' by PM Keating, a reference to the fact that election to the Senate depends on being on the Party ticket - Senators are generally not elected 'on their own merits' (with the exception of minor/micro parties)

Choosing ministry

Always chosen by PM in Liberal Party. ALP traditionally allowed Caucus to elect ministry while PM allocated portfolios. Prime Minister Kevin Rudd (2007-10 & 2013) abandoned process and chose own ministry; followed by Julia Gillard (2010-13).

Cabinet Committee

An executive committee composed of a selection of cabinet ministers. E.g. NSC, ERC, PBC.

Conventions

An unwritten practice concerning the powers, processes and procedures of a political system that has general acceptance and is consciously followed in a society's political activity. Not explicitly written in the Constitution. No legally binding penalties for breaches of conventions. Australia uses many Westminster conventions- eg- responsible government

Private Member

Any Member of Parliament who is not part of the ministry, ie formally recognised by the Constitution as a minister (private members include the opposition front bench)

Constitutional Change

Any change to the actual words and/or the effect of the words of the Constitution. This can be either a formal change by referendum which changes the actual words of the Constitution, or informal changes such as referral of powers, High Court interpretations or unchallenged legislation.

Backbencher

Any member of Parliament who is not part of the either the government or opposition front bench (ie. is not a minister or shadow minister)

Section 74

Appeal to Queen in Council No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question... unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council The Parliament may make laws limiting the matters in which such leave may be asked

Section 73

Appellate jurisdiction of High Court The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgements, decrees, orders, and sentences i) of any Justice or Justices exercising the original jurisdiction of the High Court ii) if any other federal court or of the Supreme Court of any State and the judgement of the High Court in all such cases shall be final and conclusive

Executive constitutional roles (Chapter 2)

Appoint EXCO (s62) Act on the EXCO's advice (s63) Appoint and dismiss Ministers (s64) Appoint senior government officials (s67) Commander-in-Chief (s68) (in reality defence minister and Prime Minister)

Reserve powers examples

Appoint Prime Minister in a hung Parliament (s64) Dismiss the PM if lost confidence of Parliament (s64) Dismiss PM if acting unlawfully (s64) Refuse to dissolve the House of Representatives despite a request from the PM (s5,28)

Contrast to rights protection in USA

Australia has no bill of rights (less rights are actually protected in the Australian constitution). Rights are protected through democratic process rather than formally in the Constitution.

Weak bicameralism

Bicameralism: a system of government where the legislative branch is split into two chambers (houses). In order to be classified as 'weak' the there either has to be a lack of formal power (as in the UK, where the House of Lords cannot block spending bills), a lack of legitimacy (as in the UK historically, which was partially unelected) OR a lack of political independence (if the same party controls both houses) UK: a traditionally appointed House of Lords (even now appointed positions for life, in the past there were also a significant number of 'hereditary peers' with little democratic legitimacy

Strong bicameralism

Bicameralism: a system of government where the legislative branch is split into two chambers (houses). In order to be classified as strong, the houses need to have coequal (or near coequal) powers, notably the power to block all legislation emanating from the other house. In practice, there also has to be a lack of party discipline (like the US) or the same party should not control both houses (like Aus) - this political division ensures that the houses have the willingness to use their formal powers. US: strong because of the extremely weak party discipline - Congressmen and Senators routinely cross the floor AUS: typically a balance of power Senate, exception 2004-07 Howard control of Senate reduced its power

Legislation

Bills that have been assented to by both houses in identical language and have received royal assent become statutory law, enforceable upon proclamation. S.51 outlines most of the areas commonwealth parliament can legislate with respect to. Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019 assent on 6th march 2020

Executive

Carries out the day-to-day government and administration of the country; proposes laws to the parliament and executes the laws passed by the parliament. Formed by majority in House of Representatives. Can be obstructed by Senate (doesn't need majority).

Section 15!

Casual Vacancies Procedure for filling a vacancy in Senate - Party gets to appoint candidate. Don't have to do another by-election.

Legislative power

Chapter 1. The authority of Parliaments to make laws for society.

Executive power

Chapter 2. The power to administer the law.

Judicial power

Chapter 3. The power to interpret the law or apply the law in individual cases.

Section 68

Command of naval and military forces "The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative."

Section 116

Commonwealth not to legislate in respect of religion "The Commonwealth shall not make any law for establishing any religion, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust." Explicit rights protection

National Security Committee

Considers major foreign policy and national security issues of strategic importance to Australia, border protection policy, national responses to developing foreign policy and security situations (either domestic or international) and classified matters relating to aspects of operation and activities of the Australian Intelligence Community. Decisions do not need to be endorsed by Cabinet. Chair - Morrison, Deputy Chair - Josh Frydenberg, Members - Michael McCormack, Greg Hunt, Sen. Mathias Cormann, Sen. Marise Payne, Christian Porter, Peter Dutton, Sen. Linda Reynolds (Foreign, Defence, Immigration, Attorney-General, Treasurer.

Expenditure Review Committee

Considers matters of detail regarding expenditure and revenue for the Budget, the Mid-Year Economic and Fiscal Outlook. Decisions must be endorsed by the Cabinet. Chair - Morrison, Deputy Chair - Josh Frydenberg, Members - Michael McCormack, Greg Hunt, Sen. Mathias Cormann. (Assistant Treasurer, Treasurer, Finance Minister, Social Services.)

Parliamentary Business Committee

Considers priorities for the Australian Government's legislation program and requests to the Prime Minister for the presentation of ministerial statements. Decisions do not need to be endorsed by Cabinet. Chair - Christian Porter, Deputy Chair - Mathias Cormann, Members - Anne Ruston, Darren Chester, Ben Morton.

Formal Limits of Prime Ministerial Power

Constitution limits every institution of power by setting limits as to what the government can and cannot do No direct election of PM (lack of personal mandate) Constitution establishes independent judiciary for judicial review Vote of no confidence- link to Westminster chain of accountability (parliament) Question Time- link to Westminster chain of accountability (parliament) Opposition Party - link to Westminster chain of accountability (parliament) Influence over Cabinet Committees Federalism

Section 24

Constitution of House of Representatives "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators."

Higher law

Constitutional law. Overrides all other law. Where statute is thought to violate a section of the constitution, its validity can be challenged in the High Court.

Ministry v Cabinet

Most senior Ministers, including the Prime Minister form the Cabinet. Ministry includes all ministers, including junior ministers and assistant ministers.

Select Committee

Created as required to inquire into and report upon a particular matter. It may be established at any time by a resolution of the Senate which will specify the committee's composition, terms of reference and powers. A select committee has a limited life and ceases to exist when the time allocated for it to do its work expires upon the presenting of its final report. Committee Examples: administration of sports grants committee established 5th Feb 2020 Management and Execution of the Murray Darling Basin Plan established 23rd July 2019

Current Governor General

David Hurley since 1 July 2019 Previously Peter Cosgrove, Quentin Bryce

Adjournment Debate

Debate on the question 'That the House do now adjourn' is specifically exempted from the normal rules of relevance applying to other debates, provides Members with an opportunity to speak on any matter they wish to raise. Although, technically, Ministers are not excluded from participation in the adjournment debate, in practice the period is regarded as an opportunity for private Members. The standing orders provide for a one hour or half hour adjournment debate to take place at the end of every sitting day.

Misleading Parliament

Deliberately misleading the Parliament can be treated by the Parliament as contempt (possibly leading to 6 month jail, $5000 fine for individuals or $25000 for corporations), at a Federal level this is reviewable by the Federal Court. The committee system hears contempt charges (Privileges committee) and decides if Parliament has been misled Rarely are findings of contempt made, even if so this usually only results in order to apologise to Parliament or a formal warning.

Role of HCA

Determining constitutional cases - original jurisdiction under section 71 Hearing appeals - appellate jurisdiction under section 73. Must apply for special leave to appeal as per Judiciary Act S35A. Reasons for appeals: conflict between courts, miscarriage of justice, question which creates possibility of new common law. NO AUTOMATIC RIGHT TO APPEAL.

Section 57

Disagreement between the Houses - Outlines procedures to take place 1. try again in 3 months 2. GG enacts a double dissolution 3. Joint sitting convened by GG 4. Members of joint sitting debate and vote

Section 44

Disqualification "Any person who: i) is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power... shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."

Express powers examples

Dissolution of Parliament (s28) Writs for new elections (s32) Royal assent to bills (s58) Appointing federal judges (s72 i) Appointing high commissioners Establishing Royal Commissions of Inquiry

Why do referendums rarely pass?

Double majority too high. Voter caution/conservatism Voter apathy Voter ignorance Weighting of yes/no case Voter cynicism - expanding political power, opportunistic referendums Opposition to centralisation of power - 84 / 150 MPs NSW/VIC Government impatience = complexity Influence of individuals and groups

Section 28

Duration of House of Representatives "Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor General"

Section 35

Election of Speaker "The House of Representatives shall choose a member to be the Speaker of the House. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General."

Basis of legitimacy

Elections. S7,24,128

Section 90

Exclusive power over customs, excise, and bounties Import/export taxes or tariffs. Given exclusively to Commonwealth.

Section 52

Exclusive powers of the Parliament "The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; iii) other matters declared by this Constitution to be within the exclusive power of the Parliament."

Section 61

Executive power "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."

Section 62

Federal Executive Council "There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure"

Section 96

Financial assistance to States "The Parliament may grant financial assistance to any State on such terms and conditions as the Parliament sees fit" Untied payments can be spent at States' discretion (general purpose payments), tied payments have conditions attached (specific purpose payments)

Advantages/purpose of federalism

Flexibility: customise policy to unique communities, embrace diverse populations in a single political system Democratic participation: smaller constituent entities allow more direct participation, member of two levels of government Choice and competition: freedom to move to other states = competition to improve conditions Check on government power: division of power prevents totalitarianism and concentration of power, greater scrutiny of policy due to need for cooperation

Ceremonial executive

GG. Formally ratifies decisions (express powers) and occasionally intervenes in special circumstances to resolve political deadlocks (reserve powers) - via the mechanism of the FEC Australia a constitutional monarchy = Governor-General forms part of the executive, but does not exercise political power. GG acts on the advice of the Prime Minister and the Executive Council (ministers in the government).

Being a viable alternative to government

Governments are made and unmade by House of Representatives: governments fall without support, even if rare due to discipline in modern politics - party discipline would need to dissolve to occur. Minority government rare but increases accountability of government and opposition mandate. Being prepared for government: having viable policy platform, present coherent vision to nation, present as competent and ready to govern

Section 2

Governor-General "A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure"

Tied grants

Grants made by the Commonwealth to the States under Section 96 of the Constitution, which permits the Commonwealth to attach conditions to the grant. Since the emergence of the VFI tied grants have become a powerful mechanism altering the federal balance of power allowing the Commonwealth to use its financial power to interfere in State residual power. Tied grants stipulate how the money is to be spent before the grant is made. The onus is on the Commonwealth to monitor State compliance.

Financial powers

HT power to levy taxes to raise and spend money. The Commonwealth possesses financial powers in specific and enumerated exclusive and concurrent powers (heads of power) in the Constitution. Financial powers include the power to make conditional grants to the States (section 96). The scope of the Commonwealth's financial powers have increased with the VFI. The scope of the financial powers re justifiable and may be altered by High Court interpretation, changing federal balance of power.

Section 51 (xxvi)

Legislative powers of the Parliament "the people of any race for whom it is deemed necessary to make special laws;" Amended by Constitution Alteration (Aboriginals) 1967, and previously: "the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;"

Limits on the effectiveness of the Opposition: Speaker

Impartiality of the speaker: Australian chosen by government rather than like Britain where chosen by lower house and resigns from party and opposition doesn't run candidate agains them. Impartiality depends on character. Bronwyn Bishop: 2013-2015 speaker, questionably allowed name-calling of "Electricity Bill", expelled 400 MPs and only 7 were Liberal, let ministers speak overtime, hosted Liberal Party fundraisers May 2014, named 5 MPs but Mark Dreyfus 4 times.

Loyal opposition

In the British Westminster system, the full name of the Opposition is "Her Majesty's loyal opposition". This also applies in Australia. The Opposition is loyal to the system of government but is in adversarial competition with the current executive government. For example- the Albanese Opposition is loyal to Australia but is opposed to the Morrison government.

Section 109

Inconsistency of laws "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

Disadvantages/risks of federalism

Intergovernmental conflict: difficulty compromising, federal intervention = conflict, GST debate Too much bureaucracy: duplication/inconsistencies in laws, increase business costs, lack of cooperation unproductive in areas like infrastructure Avoiding responsibility: national governments can blame states for failures

High Court interpretations

Interpretation of the words of the constitution change the meaning. Example: Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3.

Judicial independence

Judges make decisions free from legislative or executive interference.

Section 72

Judges' appointment, tenure and remuneration The Justices of the High Court and of the other courts created by the Parliament: i) shall be appointed by the Governor General ii) shall not be removed except by the Governor-General in Council, or on address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity iii) shall receive such rumination as the Parliament may fix, but the renumeration shall not be diminished during their continuance in office The appointment of a Justice of the High Court shall be for a term expiring upon his attaining of the age of seventy years

Section 71

Judicial power and Courts "Judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates."

Outer ministry

Junior ministers. May attend cabinet as required (when decisions in their portfolio areas are being considered -- "Ministers not in the Cabinet (including parliamentary secretaries) with a portfolio interest in an item listed for Cabinet (or Cabinet committee) consideration may seek to be co-opted for that item by having the relevant portfolio Cabinet minister make a request to the Cabinet Secretary... will be sent the relevant papers and will participate fully in the discussion of that item, withdrawing once his or her item has been considered."

Sources of Prime Ministerial Power

Leader of the party with the majority of support in the lower house (dictates passage of legislation) Chairperson of Cabinet meetings (controls Business List) Access to information (most informed - advice from all departments) Patronage (promote/demote/dismiss Ministers therefore can reward/punish them) Determining election date (maximise chance of re-election) Face of the government (most media attention - popular appeal)

Issues for John Kerr

Leave government unable to finance legislation Break with conventions Worried PM would contact Queen to dismiss him (circular accountability)

Delegated legislation

Legislation that authorises statutory bodies (such as local councils) or ministers to create regulation on behalf of Parliament - Parliament retains the right to reverse any regulation created in this way. This allows for more flexible law-making (especially with respect to technical aspects of laws which need to be kept up to date) and also allows for flexibility (eg. different by laws to suit different local councils)

Section 1

Legislative Power "The legislative power of the commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives"

Section 51 (ii)

Legislative powers of the Parliament "The Parliament shall... make laws for... (ii) taxation but so not to discriminate between States or parts of States." Used to raise taxes- income tax

Section 51 (xx)

Legislative powers of the Parliament "The Parliament shall... make laws for...foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" Power to make laws in regards to companies and business

Section 51 (xxix)

Legislative powers of the Parliament "external affairs"

Section 51 (xxviii)

Legislative powers of the Parliament "influx of criminals"

Section 51 (xxi)

Legislative powers of the Parliament "marriage" Same sex marriage plebiscite

Section 51 (xxxi)

Legislative powers of the Parliament "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;" Rights protection

Limits on the effectiveness of the Opposition: Lack of resources

Limited in capacity to hold executive to account and to formulate detailed policies. Government commands access to expert advice, knowledge of government workings, administrative power of the public service. Opposition get about 21% of staffing that government gets. PM decides resources allocated to opposition. ALP better opposition that Liberals due to extra-parliamentary party and support from well-financed trade union movement.

Cross bench

Members of Parliament who are not members of the government or opposition parties (including minor party members, microparty members & independents )

Individual ministerial responsibility

Ministers must take responsibility and be held accountable for the actions of people below them. Difficult to interpret due to the size and complexity of modern government.

Section 64

Ministers of State "The Governor-General may appoint officers to administer such departments of the State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Minsters of the State for the Commonwealth."

Political executive

Ministry/government. In practice, also determines legislative agenda. Budget appropriations (parliamentary allocations of money) and tax proposals must originate in HoR so executive arm has the dominant power in the political system. "Engine room of the government."

Section 128

Mode of altering the Constitution Requires a referendum to be held with a majority of votes in a majority of states (double majority)

Emergency powers

Not in the constitution. Could argue that because executive power in the Constitution is so broad, it could include emergency powers (eg-s68-command of military forces).

Dismissal of Gough Whitlam date

November 1975 by Sir John Kerr

Joint Sitting

Occurs only after a DD election under s.57, and then only if the Senate continues to refuse to pass the bills that formed the DD trigger - because the House outnumbers the Senate 2:1 (nexus clasue, s.24), the party winning the House election will typically dominate a joint sitting - joint sittings only can consider DD triggersA joint meeting is a gathering of both houses to hear addresses by visiting heads of state; Only example 1974

Parliamentary Procedures: Media

Opposition can exploit media reports of government wrongdoing. 2016 Four Corners report led to Royal Commission into juvenile detention in NT and sacking of NT Minister for Corrections. Obtain information from whistleblowers, investigative journalism etc. Government can attempt to control flow of information like Abbott Government's 'operational matters' classification applied to government actions over asylum seekers.

Decision

Opposition formed a caretaker government on the proviso that they would call a double dissolution and pass financial bills Withdrew Gough Whitlam under s64 Followed literal interpretation of Constitution and broke convention

Section 75

Original jurisdiction of High Court Original jurisdiction of the High Court in all matters: i) arising under any treaty ii) affecting consuls or other representatives of other countries iii) in which the Commonwealth...is a party iv) between States

Limits on the effectiveness of the Opposition: Executive Dominance

Over House of Representatives and source and flow of information.

Role of PM in Cabinet process

PM can exercise Prime Ministerial authority and impose their will on Cabinet to make decisions.

Informal Limits of Prime Ministerial Power

Party Room spills to replace leader- lack of cabinet solidarity (cabinet) Popularity of PM within party (cabinet-party room) How large the government majority is in the HoR/minority government (Parliament) Negative media attention

Referendum process

Passage of an initiating bill through both houses of Parliament (majority in both), double majority, royal Assent (express by convention). Unless the parliament vote is unanimous, equally weighted 'yes' and 'no' cases must be presented to voters

Express powers

Powers codified in the Constitution. The GG possesses express executive powers. Commonwealth Parliament possesses express legislative and financial powers.

Exclusive powers

Powers granted by the Constitution to the Commonwealth Parliament alone. Section 52, 115

Concurrent powers

Powers granted by the Constitution to the Commonwealth and State parliaments. Shared powers outlined in Section 51. Section 109 invalidated State laws that conflict with Commonwealth laws, to the extent of inconsistency.

Section 53

Powers of the Houses in respect of legislation "Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate"

Reserve powers

Powers the Governor-General may exercise without or contrary to ministerial advice. Limited by the conventions fo a responsible parliamentary government and exist only as a last resort.

Constitutional roles

Powers vested in the Governor-General's office under the Constitution

What isn't in the constitution?

Prime Minister, case law and precedents, key statutes, express emergency powers

Legislative constitutional roles (Chapter 1)

Proclamation of parliament any sessions (s5) Suspending between sessions and dissolving HoR (s5) Dissolving HoR (s28) Writs for general elections (s32) Double dissolutions and convening joint sittings (s57) Royal assent to bills (s58)

Section 63

Provisions referring to Governor-General "The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council."

Administrative executive

Public service/bureaucrats. Implements decisions. Accountable to the relevant ministers and the Parliament. Charged with responsibility of advising the government of the day and implementing government and parliamentary decisions.

Parliamentary Procedures: Calling for quorum, refusing pairs, calling for divisions

Quorum: minimum number of Members of parliament required in House or Seante for a vote to be taken. 30 in HoR including speaker. By convention overlooked, but opposition can call to frustrate government in exercise of power and delay business of the House. Pairs: convention if granting pairs tradition adopted to allow House to function if government members absent. Opposition agrees to remove one of its own members to preserve government majority. Refusing means that government has to summon MHRs to delay business. Division: opposition asks for division/formal vote where members move and are counted by party whips. Time consuming so delays business. Contributes to accountability of members as recorded in Hansard.

Ceremonial roles

Receiving and entertaining heads of State and visitors Opening sessions of new Commonwealth Parliament Receiving credentials of foreign diplomats/commissioners Conducting investitures (receiving awards under the Australian Honours system)

Features of the Constitution supporting states' rights

Referendum process: double majority requirement needs state approval as well as people majority Role and composition of the Senate - equal number of Senators for each state (although introduces malapportionment) and role as a 'State's House' borrowed from US - Washminster system

Referral of powers

Referral of powers refers to the mechanism under Section 51(xxxvii) of the Constitution that allows individual States to pass residual powers to the Commonwealth. It results is a federal change of power although it is limited. It only affects the referring State (although other states may adopt the referral if they choose). Method of informal constitutional change.

Section 13

Rotation of Senators "the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years"

Section 58

Royal assent to Bills - must assent to bill before it passes into law "according to his discretion but subject to this Constitution" in the name of the Queen - may return to House of origin with recommended amendments In practice, always assents.

Constitution

Rules that govern the governors. A set of fundamental laws/conventions which create and define the institutions of power within a nation.

Section 107

Saving of power of State Parliaments "Every power of the Parliament of a Colony which has become or becomes a State shall continue as at the establishment of the Commonwealth"

Covering the field

Section 109 of the Constitution resolves conflicts between Commonwealth nd State laws in areas of shared concurrent powers. Section 109 invalidates State law "to the extent of inconsistency". The Commonwealth may sate in its law that it is 'intended to be the only law in the field'. The effect is to create a 100% inconsistency with any existing State law and invalidate the entire State law. 'Covering the field' was challenged by the States in the High Court but was found to be valid. It has altered the federal balance of power in favour of the Commonwealth and made Australia a more coercive federation.

Section 127

Section 127 repealed by the Constitution Alteration (Aboriginals) 1967, and previously read as follows: "127. "Aborigines not to be counted in reckoning population" In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted."

Formal constitutional change

Section 128; referendum with double majority. 8/44 passed. Last successful 1977, last failed 1999.

Referral of powers

Section 51(xxxvii) of the constitution makes it possible for States to voluntarily refer any of their residual or concurrent powers to the Commonwealth. A referral of power only affects the referring State. Example: referral of Family Law powers by all states except WA has allowed for national law in this area.

Process of legislating

Section 51,53

Exercise of executive powers

Section 61 states: "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth " In practice, it is the Cabinet, led by the Prime Minister, that does this.

Cabinet appointments

Section 64 states: "The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth." In practice, PM leads the party with a majority in the House of Representatives. Ministers are chosen by the Prime Minister who advises the Governor General of the names and portfolios to be allocated to them.

Cabinet

Senior 'ministers of state' - the 'engine room of government' - must be 'ministers of state' (within the meaning of s.64) & need to be sworn in by the GG. "The council of senior Ministers who are empowered by the Government to take binding decisions on its behalf." Product of convention and practice. Outcomes of deliberations may require action from GG or individual Ministers.

Background to Gough Whitlam dismissal

Series of financial crises decreased popularity of Labor government. 2 casual vacancies opened up and states elected non-Labor senators to replace, which changed the balance of power. Opposition blocked supply bills and called for a double dissolution. Whitlam asked for a half senate election.

Parliamentary Procedures: Question Time

Session in each sitting day where Private Members may ask questions on or without notice directed to relevant Ministers or PM in respective House. Theoretically ministers must not mislead Parliament when answering due to IMR. In practice questions can be avoided to due to limited requirement that responses are relevant, Government Private Members may ask Dorothy Dixters which offer opportunities for a Minister to speak on topics favourable to the government.

Salary

Set by Governor-General Act 1974 and s3 of Constitution "Annual sum which, until the Parliament otherwise provides..." "Shall not be altered during continuance of office."

Significance of Section 90

Similar to an exclusive power in effect Key reason for federalism was to allow free trade between states Customs, bounties and excise = charges on goods crossing a border, or forms of taxation applied to goods (things that are purchased by customers and producers. Given to federal government to prevent States imposing Not clearly defined and open to interpretation

Parliamentary Procedures: Debate

Speak against government or highlight matters embarrassing to government. Government can use standing orders to reduce debate opportunities. Can also gag or guillotine debate on legislation. Don't have any potential to sanction government.

Section 51 (xxxvii)

States can refer concurrent/residual powers to the Commonwealth

Caucus

The ALP party room - all MPs (Senators and MHRs) belong to caucus.

Leader of the Opposition

The Leader of the Opposition is the leader of the party with a 'second largest number' of House of Representatives seats. The leader of the alternative government.

Section 7

The Senate "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate."

Shadow Ministry

The Shadow Ministry is composed of senior members of the opposition party who directly oppose a corresponding Minister of the government. The Shadow Ministry is sometimes referred to as the Opposition Front Bench. Example: A shadow Minister whose job is to scrutinise and oppose the Minister for Education is referred to as the 'opposition spokesman for education" and so on.

Judicial discretion: literalism

The actual words of the law and their plain English meaning are used with minimal consideration of extraneous sources.

Residual powers

The areas of law making authority not granted to the Cwth alone or jointly with the States, by the Constitution. Powers in this area remain exclusively with the States. Eg- health, education

Constitutionalism

The belief that the powers of government should be limited and subject o the rule of law. Requires that the powers of the parliament must be set out in a written or unwritten constitution. People follow the law out of moral obligation rather than coercion.

Party Room

The collection of all elected MPs belonging to one party. The party room chooses the leader (for the liberal and national parties) - in the ALP this is more complex, since non-parliamentary party members get a vote on leadership. Sometimes party room meetings debate specific bills/policies (rarely - an example was the debate in 2015 in the Liberal party room over same sex marriage) Note: although the Nationals are in coalition with the Liberals, they do not sit as one party room - this means that the National Party has no say over the leader of the Liberal Party (if they did it is very likely Abbott would still be PM)

Entrenchment/amendment

The constitution is difficult to change. Purpose is protection of rights (government cannot easily change the constitution to give itself more power or take away rights). Section 128.

Pairs

The custom (professional courtesy) of 'granting pairs' means that members who are absent from the house for official business, or due to personal commitments or sick, are granted a pair- a MP from the opposite party will abstain from voting so that neither side is disadvantaged by MPs being unable to attend the house The Abbott opposition was less generous in granting pairs during the hung parliament, requiring a medical certificate or absence for official business only

Separation of Powers

The division of government executive, legislative and judicial powers into separate arms that act separately and independently from one another. Independence of judiciary. Purpose to limit government. Chapter 1,2,3

Ministry

The entire collective of ministers, assistant ministers and the Prime Minister. Divided into an inner ministry of senior Cabinet ministers and outer ministry of lord important ministers and assistant ministers. Administer the various government departments.

Grievance Debate

The final order of the day in the Federation Chamber on each sitting Monday is the grievance debate. It is called on at 9 p.m. following committee and delegation business and private Members' business. A Member may present a petition during the grievance debate provided the Petitions Committee has checked the petition for compliance with the standing orders and approved it for presentation

Constitutionalism

The idea that power should be limited. Democratic constitutions are founded on this.

Vertical Fiscal Imbalance (VFI)

The imbalance in the taxing powers and spending obligations between the two levels of government within a federation. In Australia the Commonwealth collects more revenue than it needs and the States receive much less than they need. The VFI forces the States to accept grants, often tied grants, to meet their spending obligations.

Non-Government Business

The largest proportion of the time of the House is taken up with government business. ... the rules of the House provide opportunities for private Members to initiate legislation and motions for debate (private Members' business) and to make speeches on topics of their own choice. Each sitting Monday, time is allocated for non-government business

Hansard

The name given to the edited transcripts of debates in the Senate, House of Representatives, Federation Chamber and parliamentary committees. They are published shortly after the chamber or committee proceedings have concluded. The official record of Parliament.

Concurrent powers

The powers and responsibilities of government set out in s51 that can be carried out by both the Cwth and States. Where conflict exists, the Cwth overrides (eg- taxation)

Party Discipline

The practice (not convention!) of MPs voting as a bloc with their party - in the ALP tis is formally enforced by party rules ('the pledge') whereby any MP crossing the floor can be expelled from the party (but NOT the Parliament). In the Liberal-National parties this practice is enforced through self interest (united parties more likely to get reelected, fear of not being preselected and because promotion to ministry only possible if loyal). Additionally, the convention of cabinet solidarity further requires ministers to vote with the government (or resign as ministers)

President of the Senate

The presiding officer of the Senate, whose chief function is to guide and regulate the proceedings in the Senate. They are a senator who is elected to the position by the members of the Senate.

Judicial discretion: activist

The purpose and intention of the law is as important as the actual words; There may be implications found in laws that may not have been specifically expressed by the law itself; The broader social impact of the interpretation is a valid consideration

Standing Orders

The rules under which Parliament operates, made under authority of s.50 of the Constitution (which allows each house the authority to make its own procedural rules).The presiding officer (Speaker/President) interprets and applies the standing orders.These rules cover procedural matters and grounds for (temporary) suspension of MPs for misbehaviour. Speaker Bronwyn Bishop famously evicted over 300 MPs (almost all ALP) for one hour under section 94a of standing orders

Second Reading Speech

The speech by the responsible minister in which a law is introduced in to the parliament - this is used by the courts to establish the intent of the law where statutory interpretation is required. This demonstrates the influence of the executive branch over lawmaking and reflects the fact that almost all successful legislation is government initiated.

Consideration in Detail

The step of the legislative process where bills are examined in detail, usually conducted through the committee system (legislation committees): Some bills may require consideration only from a technical point of view while others may need to be examined in terms of their substance and impact. Committees endeavour to seek evidence from a wide range of witnesses in the time available, both by receiving written submissions and by oral evidence. The committees meet in public to hear evidence from the appropriate minister and officials, and usually a number of independent experts or representatives of organisations affected by the bill. The work of the Senate committees is especially significant since the government does not control the numbers in these

Flood gate

The strategy of introducing a high volume of legislation into the parliament with the aim of passing bills with minimum scrutiny or debate or to apply political pressure to non government MPs. Overwhelms statutory process. Flood gating is used with gags and guillotining to push legislation through the HoR quickly but often at the expense of scrutiny and input (implication for democracy and accountability).

Judicial discretion: legalism

The strict use of legal rules and maxims of interpretation are applied. The narrow reading of the text is applied without considering community concerns of evolving cultural norms. Legalist judges attempt to minimise the influence of outside factors on their decision making.

Sovereignty

The supreme power to govern. National sovereignty refers to the power to govern a people and territory. In a democracy, sovereignty is vested in the people. Citizens delegate it to a government at an election. S7,24,128.

Section 32

Writs for general election "The Governor General may cause writs to be issued for eternal elections of members of the House of Representatives."

Sitting Weeks

The time that Parliament is actually meeting on a daily basis, usually for around 5 weeks at a time - in between the Parliament is not sitting and MPs typically attend to local constituencies - during sitting periods, QT occurs daily and cabinet meets every Tuesday. Parliament is said to 'rise' at the end of a sitting period (meaning they take a break).

Partisan model of representation

The view that MPs are elected largely as a result of their party allegiance and owe their loyalty to the Party to which they belong. This strongly supports the idea of party discipline (although there are also other reasons why party discipline exists). The ALP formally enshrine this in the rule ('the pledge') that MPs that cross the floor and vote against the party position are expelled from the Party

Delegate model of representation

The view that MPs should act according to how their constituents would want - ie. do what is popular in their electorates. The MP is seen as acting as a 'mouthpiece' for their constituents and should do as they would do. Seen in so-called 'focus group' and 'opinion poll' driven governing

Trustee model of representation

The view that MPs should exercise their own judgment when making decisions, not act as they believe their constituents want.

Section 80

Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes

Triple executive

Triumvirate executive. Consists of political, administrative and ceremonial executive.

Unchallenged legislation

Unconstitutional laws that go unchallenged in the High Court. Until struck down by the HCA they remain active law. Statutes may be unconstitutional because the Parliament lacks a head of power within the constitution granting it the legislative power to make the law.

Judicial Independence

Under Section 71 (ii). Allows for creation of Federal Court hierarchy and permits for cross vesting of power (allows federal matters to be adjudicated by state and territory courts using federal jurisdiction that has been 'invested' in them.). Family Act 1975 created Family Court of Australia all but WA referred powers to its 'specialised jurisdiction'.

Conventions*

Unwritten practices that are generally accepted in society.

Ministerial Statement

Used to inform the Senate of policy or other issues or decisions relating to the minister's portfolio, or to portfolios the minister represents in the Senate.

Parliamentary Procedures: Senate

Usually free of executive dominance. Permits passage of motions. Highly effective Senate Estimates Committees able to summon Ministers from either House to answer probing questions such as March 2020 over sports rorts scandal. Witnesses covered by PP and must not mislead Senate. If cross bench holds balance of power can be persuaded to support opposition to block government Bills such as union busting bills 2019 Jacqui Lambie and Pauline Hanson.

Who are the kinds of people that become GG?

Well respected, "Australian" people Typically lawyers, military retirees

Cabinet Conventions

Westminster conventions of responsibly parliamentary government concerning Senior Ministers of the executive that form the Cabinet.

Crossing the Floor

When a MP votes against their party (breaks party discipline) - if a minister did this, this would be cause for resignation under the convention of Cabinet Solidarity - a backbencher may do so without formal sanction, however (1) this would risk political backlash - eg. not being preselected or in extreme case, being expelled from the party (2) In the ALP any MP that does this is expelled from the party - it is less clear what the consequences of abstaining are.

Abstain

When a member declines to vote on the floor - their vote is not counted. This occurs routinely when 'granting pairs' but can also be a form of protest by a MP which falls short of crossing the floor but nonetheless signals discontent with a party position

Representation

Where citizens vote to elect their representatives who in turn, vote on legislation. Section 7, 24

Circular accountability

Where two parties hold each other to account. The Prime Minister and the Governor-General each hold the power to dismiss the other.

Section 33

Writs for vacancies "Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new members, or if there is no speaker or he is absent from the Commonwealth the Governor General in Council may issue the writ." (PM and Ministers)

Section 87

[Revenue from customs and excise duties] Revenue from customs and excise duties. Required Commonwealth to pay States 75% of surplus revenue from excise revenues. Spent section- expired after 10 years.

Cabinet

a committee of the executive comprising of the Prime Minister and senior ministers. government entirely by convention and has no legal or constitutional authority. most powerful institution in entire system of government.

Prerogatives (executive)

actions the executive can take without the approval f parliament. limited to those actions which parliament cannot pass a law to enact. limited by Williams Cases.

Assistant Minister

aka 'parliamentary secretaries'. Not Constitutionally recognised as 'ministers of state' (as per s.64). 'Trainee' positions for 'up and coming' members of the government. Limited responsibility.

Opposition Mandates

also elected to represent constituents. job of a 'loyal opposition' is to oppose. ultimately will bend to public pressure. government has recourse of calling double dissolution if opposition was being truly obstructionist.

Pressure Group (distinguish from political party)

an organised group of people who share common interest, attitudes or beliefs and take deliberate action that is aimed at influencing public policy but do not contest election.

Political Party

an organised group that seeks to achieve representation in parliament and to exert influence or control over the machinery of government.

Specific/policy Government Mandates

claim mad by governing party to have authority to implement policy and promises that were specifically party of an election campaign. most successful of all claims to mandate.

General Government Mandates

claim made by the governing party to have authority to implement policies that reflect its ideology.

Party Discipline

control or pressure used by political parties to ensure its member vote together in parliament. controlled by party whip.

Plebiscite

direct vote by the people on a particular question or issue. result not necessarily binding.

Law (Public Law)

formal rules deliberately set by society. enforceable by courts. universal, legitimate. monopoly on the use of fore. public law regulates the conduct of individuals with society (includes constitutional and criminal law)

Implicit rights protection

freedom of political speech has been read into the constitution by the HCA, but this does not extend to all forms of speech

Party Room

general term for meeting of a parliamentary political party's elected MHRs and Senators. critical forum for political debate. Liberal Party Room, Caucus, Coalition Party Room. compensate for decline of parliament.

Common Law

law based on previous judgements of the courts. operates on the principle of stare decisis: to stand on what has been decided. precedents are binding on all lower courts.

Parliamentary Sovereignty (as applies to lawmaking)

laws made by parliament have sovereignty over all other laws; common, state

Statutory Law

legally enforceable legislation that has passed all stages in Parliament, received Royal Assent and was been proclaimed.

Arguments against General Mandate

lower house is less representative - 2 party dominated. Senate always intended to be a check on government. many people vote a split ticket meaning they want a strong senate. suggests that nobody has a mandate in a hung parliament.

Arguments for General Mandate

lower house is more representative. lower house is house of government. provides stability, predictability and clear accountability.

Backbench

members of parliament who are not in the cabinet or the ministry (government front bench) or a member of the opposition shadow front bench.

Arguments for Specific Mandates

more credible when policy same as election promise, core election promise, policy promised in detail. provide more predictability for voter - know what you're getting, can hold accountable if not.

Micro Party

organisation that contests elections fro the purse fo raising its portfolio and putting pressure on larger parties.s single-issue presser groups.

Overruling, disapproving & distinguishing

overruling: superior court reconsiders a case where a legal principle used was created in a previous judgement of a lower court and substitutes its own ratio decidendi. disapproving: court decides not to follow a decision by a court at the same level distinguishing: court decides a case is unique to all that have come before it.

Hung Parliament

parliament in which no party wins more than 50% of the seats in the lower house. by convention, the previous government has the first opportunity to attempt of form government. if unsuccessful, other alliances of parties and independents may try to form a minority government. last hung parliament was the 43rd under Gillard in 2010 and formed by ALP + independents who agreed to support government on confidence motions and supply.

Minor Party

parties that do not have the broad support base required to win sufficient lower house seats in a general election to form the government or the opposition. associated with specific policy areas (Greens) or represent interests of a minority (Nationals). wield power by holding the balance of power or forming coalition with other parties.

Opposition

party with the second largest number of seats in the ouse of representatives. alternative government under Westminster system. role is to hold government to account and be ready to govern.

Major Party

political parties that can achieve a majority or near-majority of seats in the House of Representatives. brand support base, organisational capacity to contest all or most seats, wide-ranging philosophy, comprehensive set of policies. ALP and Liberal.

Balance of Power vs Hostile or Government Controlled Senate

position in which a political part of individual may use htoer position to decide the fate of a bill or motion. common head by minor parties and independents in the Senate. referred to as Senate Cross Bench. *

Balance of Power

position in which a political party or individual may use their position and vote to decide the fate of a bill or motion. commonly held by minor parties and independents in Senate. parties and independents referred to as Senate cross bench.

Sectional v Issue Pressure Groups

pressure groups focused on benefits for a particular sector of society or the economy. pressure groups focused on a particular cause they believe is a general community good. aka promotional/altruistic groups.

Arguments against Specific Mandate

reasons for voting for a party unclear. voters don't agree with all policies. popular support can be exercised through a plebiscite? core promise is subjective. general mandate can be cited as reason to break specific mandate. shouldn't government be flexible to change policies in response to changing circumstances? election promises often to clear or well known

Explicit rights protection

religion in s116, right to vote in s7, 24, 128, trial by jury in s80

Doctrine of Precedent

requires that her judgements of courts are based on precedents set by previous judges faced with similar facts. based on the principle of stare decisis. underpins common law, applied throughout a court hierarchy, ensures fairness and consistency (thus rule of law).

Conventions applying to the GG

s58: power to grant Royal Assent. Convention:GG signs bills into laws that have passed Parliament- withhold consent undemocratic. s61: the executive power of the Commonwealth is vested in the Queen, exercisable by the GG. Convention: executive power is exercised by the PM and Cabinet and the GG acts on their advice. s64: GG has power to act independently on such matters as the appointment of Ministers. Convention: The GG acts on the advice of the PM. s68: GG the Commander and Chief of the Armed Forces. Convention: GG acts on advice of the Defence Minister s72: Appointing federal Judges Convention: Attorney-General and PM decide on candidates and confirm with Opposition. GG appoints, that's all.

Separation of powers in the Constitution*

s64 Ministers must be MPs s72 Judges appointed by GG s1 Legislative power s61 Executive power s71 Judicial power

Parliamentary Committee (legislative & reference, scrutiny of bills, regulations & ordinances)

subset of parliamentarians formed into a group for a particular specialisation. some committees established for life of parliament (Standing committees), others formed for a particular purpose then dissolved after reporting to parliament (select committees). formed in either house (house committees) or members of both (joint committees). essential for legislative, responsibility and debate functions.

Judicial Review

the accountability fo the parliament and executive to the judicial arm of government.

Legislative Power (of Parliament)

the power to make statute law. the comonwealth possesses legislative powers from the specific and enumerated exclusive and concurrent powers (head of power) in the Constitution. it may pass statufe laws that are not covered by a head of power and go unchallenged by the High Court - allowing Commonwealth to expand legislative power. scope of heads of power may be altered by HC interpretation, changing federal balance of power.

Sovereignty

the right and power to govern. state sovereignty is a monopoly on the use of force and is a defining characteristic of a nation-state. government with power but no legitimacy is a police state but is impractical and inherently unstable due to internal threats, more resources devoted to security.

Legitimacy

the right to govern. provides stability. basis of legitimacy (people accepting right of a government to govern) depends on the belief system of that society (traditions, divine right, popular consent) etc. often with a theoretical basis (de jure) and practical basis (de facto) operating at the same time.

Mandate

the right/expedctation of government to exercise power on behalf of the (sovereign) people free from unreasonable obstruction. no legal enforceability - political argument. implied duty of government to deliver on promises. closely connected to theories of representations (delegate, mirror, partisan)

Social Contract Theory

theory that people give consent to government to be governed onto condition that the government governs well. people withdraw consent if government do not govern well. elections are the main mechanism through which social contract is established between people and government.

Joint Sitting of Parliament

under s57 double dissolution election can be followed by a joint sitting of the Senate and the House fo Representatives. in a joint sitting MHRs and Senators sit and vote as one house to reconsider bills that triggered double dissolution.

Cross Bench Mandates

votes for minor parties increasing over time, especially in Senate - growing mandate to negotiate policy outcomes small parties position themselves as alternatives to major parties - voters approve of obstruction senate more representative - % of seats = % votes.

Royal Assent (to Legislation)

when a Governor General signs a bill on behalf of the Queen so it becomes an Act. no legal force without Proclamation.