Politics and Law

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UNITS 3 AND 4 NOTES
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Politics and Law
CONSTITUTION 4

DEFINITIONS 8

THEORY AND PRACTICE 10

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DECLINE OF PARLIAMENT THESIS 15

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ROLES, POWERS AND LIMITS OF THE PRIME MINISTER, CABINET AND MINISTRY 18
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ROLES POWERS AND LIMITS ON THE OPPOSITION 24
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GOVERNOR-GENERAL 28
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MANDATE 32
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POWER TO INFLUENCE LAW MAKING 36

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US AND AUSTRALIA 48

HIGH COURT 55

FEDERALISM 69

CHANGES IN THE FEDERAL BALANCE OF POWER 74

FORMAL AND INFORMAL CONSTITUTIONAL CHANGE 81

PROPOSED REFORM- ABORIGINAL RECOGNITION 86

PROPOSED REFORM- REPUBLIC 88

CONTEMPORARY LEGAL ISSUE 91

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CONTEMPORARY POLITICAL ISSUE 92

THE ACCOUNTABILITY OF PARLIAMENT 94

ACCOUNTABILITY OF THE EXECUTIVE 109

ACCOUNTABILITY OF THE GOVERNOR-GENERAL 118

ACCOUNTABILITY OF THE COURTS 121

AUSTRALIA AND THE PROTECTION OF HUMAN RIGHTS 126

USA AND THE PROTECTION OF HUMAN RIGHTS 135

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CHANGING POLITICAL AND LEGAL EXPERIENCE OF MUSLIMS 137

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INTERNATIONAL PROTECTION OF RIGHTS m 139
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DEMOCRATIC PRINCIPLES- US AND AUSTRALIA 144
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3
Constitution
Section 7
Theory and Practice
Creates and defines the Senate
-Senate is modelled on the US as a powerful ‘federal chamber’
-Establishes the Senate as a States’ House, equal representative for each original state
-12 senators each
-2 territories: 2 senators each
-Requires the Senate be ‘directly chosen by the people’ – thus democratic
Malapportionment- Senate cannot achieve the ‘good government principle’ of one vote one
value
Section 24
Theory and Practice
Creates and defines the House of Representatives
-Representation in proportion to the population of the states
- ‘Directly chosen by the people’ and thus is democratic

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- ‘As nearly as practicable, twice the size’ of the Senate- nexus clause
-Ties the two houses together
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-Limits any original state to have no less than 5 members of the House of Representatives
Section 51
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Theory and Practice
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-Contains a list of 40 ‘powers of Parliament’ but this is not an exhaustive list as other powers
are located elsewhere within the constitution
Section 53
p
wa

Theory and Practice

Imposes a limit on the Senate’s power to legislate money Bills but otherwise states that the
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senate has equal powers to the House

-This provision makes it certain that no ‘rival government’ can form in the Senate
in

-Affected by the Whitlam Dismissal: Senate refusing to pass the governments money bills
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-Today’s Senate has evolved a capacity to ‘negotiate’ money Bills

Section 28
Governor General
House of representatives have 3 year maximum terms unless dissolved by Governor General
earlier.
Section 57
Governor General
Dissolve (may but doesn’t have to) both Houses in event of a Double Dissolution
disagreement between the Houses.
Section 61
Governor General
Executive power of the commonwealth is vested in the Queen and is exercisable by the
Governor General.

4
Section 62
Governor General
Establishes the Federal Executive Council.
Section 63
Governor-General
‘Governor General in Council’ to act on advice of Federal Executive Council.
Section 64
Governor-General
Governor-General can hire and fire ministers.
Section 68
Governor-General
Governor-General is commander in chief of the military.
Section 72
Governor-General
Governor-General in council appoints Justices of the High Court and other federal courts.
Section 2

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Governor-General
Governor-General is Her Majesty’s representative.
Section 5
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Governor-General
Governor-General has the power to open and prorogue parliament, dissolve the house and
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issue writs for the election of the house.

Section 32
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Governor-General
wa

Governor General has the power to dissolve the house and issue writs for the election of the
house.
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Section 58
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Governor-General
Governor General gives assent to laws (or withholds or reserves assent).
Th

No law can be passed without the approval of both houses

Section 67
Governor-General
Governor-General appoints public servants.
Section 15
Governor-General
Now amended section as of 1977 to ensure that casual vacancies of the Senate would only be
filled with a representative of that party.
Section 83
Whitlam Dismissal
No money can be drawn from the treasury except by passing law
Section 71
High Court
Judicial power and the Courts. Vests judicial power in the High Court.

Section 72
High Court

5
Governor-General in council appoints Justices of the High Court and other federal courts.
Section 73
High Court
Appellate Jurisdiction.
Section 75
High Court
Original Jurisdiction.
Section 76
High Court
Additional Original Jurisdiction .
Section 51
Federalism
Concurrent powers.
Section 52
Federalism
Exclusive powers.

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Section 90
Federalism
Customs, Duties and Excise Tax.
m
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Section 107
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Federalism
Saving of power of the State Parliaments.
Section 109
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Federalism
wa

Superiority of Commonwealth.
Section 51 (ii)
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Federalism
in

Taxation power.
Th

Section 87
Federalism
Braddon Blot. Spent legislation that required the federal government to pay the states 75% of
their tax revenue.
Section 92
Federalism
Free trade between states.
Section 96
Federalism
Grants power.
Section 51 (xxxvii)
Federalism
Referral of powers.
Section 51 (xxix)
Federalism
External affairs.
Section 51 (xx)
Federalism

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Corporation power.
Section 128
Referendum
Legal requirements for referendums.

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Definitions
Responsible Government
The convention governing the formation of government in the Westminster system in which
the executive if drawn from and responsible to the parliament.

Representative Government
A form of government which the people are sovereign but are represented in government by
elected members of an assembly (parliament) acting as their representatives. Such
representatives mat be delegates, trustee or partisan.

Separation of Powers
A doctrine by which the functions of government to make, carry out, interpret and enforce the
laws are dispersed in order to prevent the concentration of power. First described by French
aristocrat Montesquieu. A key feature of democracy. Complementary to checks and balances.

Division of Powers

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A formal arrangement allocating the responsibilities of government in a federation. This
division is sometimes referred to as ‘federal balance.’
m
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Westminster Conventions
Conventions that underlie responsible parliamentary government. Examples are the
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requirement that a government or an individual minister must resign if they cannot maintain
majority support in the lower house of Parliament and that the Prime Minister must be a
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member of the lower house.

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8
Unit 3:

Political Power
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Theory and Practice

Representation
In theory
Commonwealth Parliament is elected by the people.
eg. Section 24 and Section 7
Delegate Representation- Member of Parliament is the mouthpiece of the people and
represents their concerns with little thought for their own views.
eg. “Nationals MP Darren Chest prevails party backlash over gay marriage support” – The
Guardian 2015
-Darren Chest a National’s MP supported gay marriage after claims that some
members of his electorate of Gippsland found it to be a significant issue for them a
strong contradiction to party beliefs
Trustee Representation- Members of Parliament should make judgements about their
constituent’s best interests
-The member is entrusted by those who elect them to make representation to the Parliament

t
en
-Members do not engage continuously with their constituents and use their judgement to
decide the best interests of the electorate
m
eg. Labor MP’s given conscience vote for next to terms of parliament – ABC news 2015
eg. Jacqui Lambie (2014), voted in as delegate for Palmer United, for Tasmania. Swapped to
cu
independent/ trustee in first year of being in senate
Do

Sovereign state interest- Represent the interests of the six sovereign states within the
Commonwealth Parliament.
eg. Nick Xenophon Murray-Darling Basin**
p

In Practice
wa

Most Australian voters identify with a party rather than a ‘personality’ thus most voters cast
votes for parties whose ideologies and policies most reflect their preferences. The key
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political personality for most voters is the Prime Minister- not their local representative.
Partisan representation- Parties have the organisational and financial resources to develop
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policy and fight campaigns

Th

-Impose party discipline- thus representing their party’s interest

eg. Both Liberal and Labor party platforms have not supported a vote or support for same-sex
legislation and openly gay members including; Labor’s Penny Wong and Liberal’s Tim
Wilson have adhered to their party’s wishes despite their personal views and arguably the
views of many in their electorate
-WA Senator’s not fighting for a larger cut of the GST*
Mirror representation- Election of ‘diverse candidates’
-Senate tends to have more women and more diverse party representation
-The senate more accurately mirrors the demographic of society
-Election of minor parties and micro parties and independents
eg. NXT, Pauline Hansen, Ricky Muir *

10
Legislating
In theory
The Parliament is a ‘legislative’ – a bicameral statute law making institution
-Laws are scrutinised by the ‘statutory process’ speeches, debates and in depth analysis in
committee ensures good legislation
-Laws have diversity of input
-Laws can be initiated by any members of Parliament. There are government Bills and
Private Member Bills
-Follows statutory process
The Second Reading
Speech- This informs the Parliament of the purpose of the Bill and why it is
necessary. The Speech is delivered by the member introducing the Bill.
Second Reading Debate- Provides opportunities for members of parliament
representing diverse electorates to have an input by presenting arguments in favour or
against parts of the Bill or the Bill entirely.
The Committee Stage- Opportunities for expert advice, non-partisan highly detailed work on
the Bill. Bills are scrutinised line by line.

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House of Review- The entire statutory process is repeated in the Senate, greater emphasis on
the impact the Bill will have after it becomes law and how it mat impact on rights.
In Practice m
The legislative function in the House is dominates by the executive, which may use various
cu
tactics to force through legislation.
Do

The House
Guillotining the Debate- Government may move a motion that the time allocated to debate be
set to a certain limit. Once time expires debate ceases. Government controls this because it
p

has the controlling vote.

wa

Gagging Debate- Government may use one of its members either a Minister or backbencher
to mover a motion that the Bill be put to vote
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-Gag motions will almost always pass

-The effect is to prevent further debate
in

eg. Building and Construction Industry (Improving Productivity) Bill 2013 , Abbott and
Th

Turnbull governments wished to pass in order to reinstate the Howard era Australian
Building and Construction Commission. The Bill was debated and passed quickly in the
House.
Flood-gating Bills- Government may introduce a lot of bills simultaneously into the House
-Overwhelms the deliberative procedures of the statutory process
-Used to push legislation through
Executive dominance- May compromise the scrutiny of bills and the diversity of input
-Overwhelming number of Bills are introduced by the government and originate from
Cabinet
-All Bills being introduced are examined by the House Selection Committee- which the
government dominates
eg. 2015 Opposition Leader Bill Shorten and Deputy Opposition Leader Tanya Plibersek co-
sponsored a Private Member’s Bill called the Marriage Amendment (Marriage Equality) Bill
2015 to legislate for marriage equality. The Government used its numbers and voted to
adjourned debate on the Bill indefinitely, preventing the Bill continuing through the House.

11
Dealing with Bills
House of Representatives- House selection Committee will have decided if the Bill is to be
introduced and which of the pathways it will follow through the lower house.
1. Controversial or complex bills, pass through the House in the usual way- follow
full statutory process
-Subject to gags and guillotines
-Voted upon by divisions
2. Uncontested Bills pass through Federation Chamber
-Bills have less debate and scrutiny and are passed very quickly
-Operate by agreement- no formal divisions
Senate- All bills pass through the senate standing committee for the selection of bills
determines whether bills should be referred to legislative committees for detailed scrutiny or
if they can pass the Senate quicker
-Ensures efficiency and proper scrutiny
-Executive is much less dominant
-Diverse composition of the Senate further contributes to the democratic

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diversity of input

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Responsibility m
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The executive government is drawn from and responsible to the Parliament.
In theory
Do

-A government exists only so long as it maintains the support of the lower house – a
successful vote or no confidence will dismiss a government. This is the convention of
collective ministerial responsibility
p

-Individual ministers may be dismissed by censure motions- this is called individual

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ministerial responsibility
-Ministers must answer questions put to them by members of parliament during Question
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Time and must not be misleading when responding. Misleading Parliament theoretically
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leads to a censure of the ministers

-The executive can only spend money in accordance with the law- this requires the passage of
Th

the annual budget and other appropriations through Parliament. Bills follow statutory process.
-Parliament has many standing and select committees formed of Members of parliament- and
which have a powerful investigative capacity. Committees may inquire into matters relating
to executive power.
In Practice
-Dominance of disciplined political parties means that the party with the majority of seats in
the House will almost never lose the support of the lower house. This is referred to as
‘executive dominance’ and is the main reason why the theoretical ‘responsibility function’
does not operate well.
-Motions of no confidence and censure motions moved by the opposition or other non-
governing party members of Parliaments will always be defeated ‘on party lines’ – partisan
members of Parliament may simply vote to support their party’s position
-Conventions of individual and collective ministerial responsibility are not effective in
practice.

12
Debate
Debate helps keep the government accountable and is critical when Members of Parliament
are representing their constituents.
In theory
-A number of opportunities exist for Parliament to debate including- Grievances, Urgency
Motions, Matters of Public Importance, Private Member’s Business, Ministerial Statements,
Adjournment Debates, Second Reading Debates and Question Time.
-Grievances, Urgency Matters, Private Members’ Business and matters of Public
importance are linked to the representative function
-Second Reading Debate is linked to the legislative function
-Ministerial statements and Question Time are linked to the responsibility function
Parliamentary Privilege- Protects debate and creates the ultimate freedom of speech.
Privilege is a protection from the normal restrictions on speech, such as the civil tort of
defamation. The Parliament itself regulates Privilege through its Privileges committees in
both houses.
eg. Senator Bill Heffernan accused Justice Michael Kirby of improper use of Commonwealth
cars to solicit male prostitutes in March 2002

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In practice
In Parliament-
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Government can restrict opportunities for further debate- When it allocates time for the
sitting day.
cu
-Debate opportunities are diminished when the government extends Government business
Do

-Gags and Guillotines limit debate during the legislative process

-Debate is influenced by the need of parties to score political points in front of the media and
public
p

eg. Dorothy Dixers

wa

eg. 2017 Dorothy Dixer arranged by Scott Morrison and delivered by Andrew Hastie in order
to discuss a budget in relation to mining
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-2017 Tony Abbott delivering a Dorothy Dixer to the Minister for trade “Will the Minister
update the House on how the expanded Singapore-Australian Free Trade Agreement will
in

support the Government’s plan for jobs and growth?”

Th

-There is genuine cooperation within committees and debate here is more effective in practice
In parties
-Each parliamentary party has a party room, a regular meeting of all of that party’s MHR’s
and Senators
-Party members debate: policy, community concerns, national issues, current or potential
crises, political strategies, represent their constituents and other issues of the moment
-Within the broader extra-parliamentary organs of the political parties, that much of the
debate essential to good governance occurs today.

13
Senate
In Theory
Section 7- Creates and defines the Senate
-Senate is modelled on the US as a powerful ‘federal chamber’
-Establishes the Senate as a States’ House, equal representative for each original state
-12 senators each
-2 territories: 2 senators each
-Requires the Senate be ‘directly chosen by the people’ – thus democratic
Malapportionment- Senate cannot achieve the ‘good government principle’ of one vote one
value.

Section 53- Imposes a limit on the Senate’s power to legislate money Bills but otherwise
states that the senate has equal powers to the House
-This provision makes it certain that no ‘rival government’ can form in the Senate
-Affected by the Whitlam Dismissal: Senate refusing to pass the governments money bills
-Today’s Senate has evolved a capacity to ‘negotiate’ money Bills

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-House of Review

-States House m
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In Practice
Do

Partisan Representation- WA Senators in the GST issue.

-According to ABC News “Western Australia’s share of the GST pie has been slashed to a
record low.” In 2014 the CGC allocated 4.2 % of GST revenue to the state.
p

Sovereign State Representation- Nick Xenophon, Murray- Darling Basin, fulfilling the spirit
wa

of Section 7.
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-Murray Darling
-Erica Betts
in
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-Partisan nature of senate

Howard era

14
Decline of Parliament Thesis
Define the Decline of Parliament Thesis
The argument that the modern parliament is unable to perform its major roles because of the
rise of disciplined political parties and the dominance of the executive over the lower house,
the house in which it is formed and to which it is theoretically responsible. The argument is
countered by the revival of parliament argument.

A view that parliament is doing worse now than it did in the past usually as a result of
increasing executive dominance of the parliament and a worsening ability of the parliament
to effectively carry out its functions. There is a suggestion that a return to the ‘Golden Age’ is
required. The major argument for is that the executive is too powerful and now controls the
parliament. The solution is to reduce executive dominance. A major argument against is that
Good Governance (accountable, transparent, constrained by law, responsive, equitable,
inclusive, effective and efficient) should be the main feature when determining Parliament.

Representative function

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-The predominant position of political parties that demand loyalty from their parliamentary
members, forces them to be partisan and prevents them acting as delegates or trustees for
their constituents m
cu
-A Majoritarian electoral system that virtually guarantees a ‘two and a half party system’
eliminating much community diversity from being reflected in the House of Representatives,
Do

which is the ‘house of the people’ and the ‘house of government’

eg. For- majoritarian electoral system enables the
Legislative function
p
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-The dominance of the political executive deriving from the disciplined party system, in
proposing and selecting Bills for introduction to the House of Representatives. This prevents
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Private Members’ Bills (which tend to be Bills from non-governing parties) from being
introduced, debated and passed.
in

-The dominance of the political executive in the House and its committees virtually
Th

guarantees the passage of government initiated legislation and enables it to floodgate Bills as
well as gag and guillotine legislative debates.
Responsibility function
-The overwhelming dominance of the executive over the House of Representatives in times
of majority government- the most common form of government in Australia’s history
-The ability of the political executive to create and pass the Standing Orders of the House at
the start of each term of government, especially the rules around Question Time.
-The understanding of the theoretical Westminster conventions of responsible government,
such as the conventions of responsible government, such as the conventions of individual and
collective ministerial responsibility, by the dominance of the party forming the executive in
the lower house. Few if any motions of no-confidence or censure will ever be allowed to pass
since these would amount to a government censuring itself.

15
Debate function
-The ability of the executive to gag and guillotine debate through its control of Standing
Orders in the House of Representatives.
-A majoritarian electoral system that creates a lack of diversity in the House of
Representatives results in a deficiency of views being expressed in the nation’s premier
forum for debate.

Arguments for the Decline in Parliament thesis

Representative- Party dominance and the majoritarian system, proportional and preferential
eg. WA Senators not fighting for the GST
-“What is needed is a fairer distribution of the GST. These Liberal MPs and senators have
consistently let down Western Australians. They have failed to deliver for their. It is not as if
they are backbenchers.” –Sue Lines Labour Senator
Legislative- Party dominance
eg. John Howard
-In 2005 during the Howard government there were no private members motions that were
voted on

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-41st Parliament only 8% of the time was dedicated towards private members bills
Responsibility- Executive and standing orders, HR and Party dominance, Limited Censure
eg. Certain Maritime Incident m
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-Investigation into the ‘child overboard’ refugee claims
-Senator Hill halted the investigation by refusing to allow certain members of the ADO to
Do

appear as a witness claiming that it was a ‘confidential’ matter

Debate- Gag and Guillotine, Majoritarian system
eg. WorkChoices Gag and Guillotine- 1 December industrial relations legislation guillotines
p

and debate gagged

wa

eg. Work Choices Committee Stage- Just 39 minutes before the committee stage the
Government presented 337 amendments- 98 pages of them. That gave non-government
ks

senators just seven seconds to read and digest each amendment before they began debating
in

them. After voting to guillotine the Bill, Senator Abetz gave his second reading speech in the
Committee Stage
Th

eg. Anti-terror Bill and 2 Welfare Bills Guillotined and Debate Gagged- 5 December
eg. Welfare to Work Committee Stage- As was the case with WorkChoices, many new
amendments were presented immediately prior to the committee stage so they could not be
considered adequately by senators and the guillotine ensured they could not be addressed in
that stage of the debate.
Arguments against the Decline in Parliament thesis
Representative- Minority government, 3 year terms, Senate, Proportional Representation has
allowed for bills to be blocked
eg. “Nationals MP Darren Chest prevails party backlash over gay marriage support” – The
Guardian 2015
-Darren Chest a National’s MP supported gay marriage after claims that some
members of his electorate of Gippsland found it to be a significant issue for them a
strong contradiction to party beliefs
eg. Nick Xenophon has consistently stood up for the interests of South Australia
-In return for support on the passage of the controversial ABCC bill Malcolm Turnbull
promised closer monitoring of the Murray Darling Basin
eg. Jacqui Lambie (2014), voted in as delegate for Palmer United, for Tasmania. Swapped to
independent/ trustee in first year of being in senate

16
Legislative- Minority government, Private Members’ Bills, Senate, efficient, Judicial
eg. 25% of House of Representatives time was used for Private Members business in the 43rd
Parliament
Responsibility- Minority government, Committee, Rule of Law, Opposition, Senate
Estimates, Party
eg. Senate Estimates
-George Brandis
-Senate Estimates Hearing called after Brandis did not offer a sufficient explanation to the
inconsistencies in the reports of his involvement with the Bell organization.
-Brandis has repeated his argument that he is not at odds with his West Australian counterpart
over when he was personally involved in litigation to claw back $1 bill from the failed Bell
group of companies.
Debate- Minority government, Opposition, Committee, Senate
eg. Minor Party Influence in The Senate
-Building and Construction Industry (Improving Productivity) Bill 2013
-Liberals agreed to 48 amendments proposed by Minor and Micro parties by the likes of; The
Nick Xenophon Team, One Nation, Derryn Hinchs Justice Party, The Liberal Democrats and

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The Greens
-The bill passed on the 1 Dec 2016
m
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Do
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17
Roles, Powers and Limits of the Prime Minister, Cabinet and Ministry
Define Prime Minister
The Head of the Federal Executive (the government). The leader of the majority in the House
of Representatives. The leader of the party forming a majority government. The leader of the
party forming a majority government. The leader of the major partner in a coalition or
alliance of parties forming government. The position is entirely governed by convention.
Define Cabinet
An executive committee comprising the Prime Minister and senior ministers. It is governed
entirely by convention and has no legal or constitutional authority. Despite this, it is the most
powerful institution in the system of government.
Define Ministry
The entire collection of ministers, assistant ministers and including the Prime Minister. It is
divided into an inner ministry of senior cabinet ministers and outer ministry of less important
ministers and assistant ministers.
Characteristics of the Prime Minister

t
-Not mentioned in the constitution

en
-Westminster convention
-S64 called upon by GG to form government
m
-Party leader of party with most seats in lower house. Or party leader of the major partner of
cu
coalition on the proviso they win the majority of seats in lower house.
Do

Characteristics of the Ministry

-Answer to parliament ie. Character, portfolio, any personal interests
p

-Can be classified as Senior (Cabinet Member) or Junior or Assistant

wa

-Member of executive
-No more than 42 members and 12 assistant ministers
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-S64: must be a member of Parliament

-Chosen by PM
in

-Appoint or dismissed by GG under the advice of PM

Th

-Must support cabinet

-Responsible for portfolio(s)

Characteristics of Cabinet
-Requires secrecy
-Requires solidarity
-Senior ministers and PM a council of senior ministers
-Drawn from and accountable to Parliament
-Westminster convention no mention in constitution
-S64. Appoint or dismissed by GG
-Can partake in sub-committees with other members of Cabinet National Security
-Members chosen by PM
-Meetings to decide: government policy
-PM first among equals
-Major decisions in the operation of government
-Can be influenced by party politics
-An executive committee or also referred to as an ‘executive council’

18
Roles and Powers of Prime Minister
-Being responsible for the membership of the Cabinet and Cabinet committees, determines
and regulates all Cabinet arrangements for the government and is the final arbiter of Cabinet
procedures.
-Advising the Governor General on the appointment of Ministers (including the title and
scope of each Minister’s portfolio) and determines which Ministers will form the Cabinet.
eg. *
-As chair of the Cabinet, the Prime Minister sets the Cabinet’s agenda and determines when
and where meetings take place. The Prime Minister leads and guides discussion to achieve a
collective response and ensures the clarity of decisions. In exceptional circumstances where a
collective decision if not possible the Prime Minister’s view is authoritative. The Prime
Minister is the first among equals.

Derivatives and Powers of the Prime Minister

Being the leader of the majority party in the House of Representatives

t
-Power to determine the processes and procedures of the House control the passage of

en
legislation and debate
-Due to partisan nature of politics the Prime Minister effectively determines the outcome of
m
every vote on the floor of the House of Representatives.
cu
Being the chairperson of Cabinet meetings
-Controls Cabinet agenda Prime Ministers priorities are the Cabinets priorities
Do

eg. Tony Abbott “captain calls” reinstatement of Knights and Dames (2014)
Access to information
p

-Prime Minister is the most informed person in the entire political system
wa

-Access to information from all departments and agencies

eg. Department of Prime Minister and Cabinet
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“PM&C has unique responsibilities and a privileged role. Our principal function is to provide
high quality advice to the Prime Minister and Cabinet.”
in

Patronage
Th

The power to control appointments to office or the right to privileges.

-Appoint parliamentary members of their party to the Ministry as Assistant Ministers or
Junior Ministers. This is a promotion from the backbench.
eg. 2017 Ken Wyatt promoted to frontbench by Malcolm Turnbull prior to Susan Lay
reshuffle as Minister for Aged Care and Minister for Indigenous Health, first indigenous
Minister
-Promote members of the Outer Ministry into the Cabinet.
eg. 2015 Marise Payne promoted from Minister for Human Services to the Cabinet as
Minister for Defence, first woman to hold this position
-Allocate the portfolios amongst the Ministers
eg. Reallocation of the Immigration portfolio to Peter Dutton while Scott Morrison was
assigned the prestigious high budget Social Services portfolio
-Demote any Minister or Assistant Minister
eg. Defense Minister Kevin Andrews lost his Cabinet front bench position in the new
Turnbull Ministry
- Dismiss any Minister or Assistant Minister
Determining the election date
Within the constraints of the constitution which sets a three-year maximum and no minimum,
the Prime Minister had discretion to decide when to call an election.

19
eg. In 2010 Julia Gillard called an election after the ALP chose to replace its leader Kevin
Rudd before the end of his first term in Parliament. The 42 nd Parliament ended prematurely
after 2 years and 158 days. Gillard used her power to call an election 6 months early so she
could clear the air after the bitter feud with Kevin Rudd.
Being the public face of government
-Prime Minister is the most recognized face in government media attention is focused on
them and Prime Ministers who are competent media performers can significantly enhance
their power through this medium.
eg. John Howard was an engaging speaker and therefor capitalized on talkback radio, Kevin
Rudd appealed to young voters by utilizing new social media platforms.
-Backbenchers with marginal seats are more likely to support a popular leader
eg. 2015 motion to spill the leadership of the federal liberal party by several WA
backbenchers that, despite failing in February, was a causative factor in the eventual toppling
of Prime Minister Tony Abbott in September that year

Limits on Prime Ministerial Power

Lack of Personal Mandate

t
en
A mandate is the ‘right to govern’ that is claimed by the political party that wins the majority
of seats in the lower house at a general election.
eg. Leadership spills: m
cu
Deposition of Kevin Rudd on the 24th June 2010, Julia Gillard’s removal from office on the
26th June 2013 and the loss of the Prime Ministership by Tony Abbott in September of 2015.
Do

-Tony Abbott’s excessive use of captain calls awarding of Australian knighthood to the
Queen’s Husband Prince Phillip
Lack of solidarity and unity in cabinet
p

Dissatisfied Ministers can ‘leak’ the proceedings of Cabinet to the media as a way of
wa

undermining their Prime Minister or giving their point of view more leverage.
eg. 2015 the Abbott Government suffered frequent leaks relating to foreign affairs and the
ks

foreign aid budget; changes to legislation stripping citizenship, ban ministers from appearing
in

on Q&A.
-2nd June 2015 ABC published and article titled: “Prime Minister Tony Abbott has confronted
Th

his Cabinet colleagues over extraordinary leaks of a split on national security, describing it as
a "come to Jesus moment" for senior ministers.”
Having rivals within Cabinet or the Parliamentary Party
-Quickest route to Prime Minister is to depose the current one
eg. Kevin Rudd Julia Gillard, Tony Abbott Malcolm Turnbull, Bob Hawke Michael
Keating,
eg. Tony Abbott currently has a plan on his website to ‘Win Parliament’, clearly rivalling
Malcolm Turnbull and weakening his leadership
Constraints imposed within their own party
-Must face their party during Party Room/ Caucus’ meetings and answer to their own
backbenchers
-The elected members of the party have the power to choose their own leaders and hence the
party may depose its leader and elect a new one.
eg. Tony and Kevin
Constraints imposed by a coalition party
-Agreements for coalition are made between the leaders of the parties and the coalition.
eg. Leadership change from Tony Abbott to Malcolm Turnbull the new Prime Minister
agreed to hand the Water portfolio to Barnaby Joyce the deputy leader of The Nationals
Federalism

20
-Australia is a federation which means that the powers of government are vertically divided
(division of powers.) The Prime Minister is the chief of the Commonwealth-level executive
-Commonwealth powers are constitutionally defined and are limited to exclusive and
concurrent powers
eg. Many of the powers of Parliament are listed within Section 51, however this is not an
exhaustive list
-Federal balance of power commonwealth able to impose its will upon the States
-The council of Australian Governments is a meeting of the Prime Minister and Premiers/
Chief Ministers of the states and territories and the Head of the Australian Local Government
Association
eg. In 2015 two key issues were agreed upon at COAG: initiate a national approach to
domestic violence and the spread of ICE.
The size and nature of the House Majority
A marginal majority gives governing party members more power than they would otherwise
if the government had a large majority.
eg. Julia Gillard presided over a minority government. Made her Prime Ministership one of
constant uncertainty. The majority relied on non-labour members of the house Carbon Tax

t
en
The opposition
-Oppositions may use various parliamentary strategies and other non-parliamentary tactics to
check the power of the government.
eg. Tony Abbott
m
cu
-The fall of Kevin Rudd in 2010 after effective use of parliamentary and media
Do

strategies
-Fall of Julia Gillard 2013 Carbon Tax campaign
-Defeat of Kevin Rudd in his second Prime Ministership in the 2013 general election
p

Negative media attention and polling

wa

-Constant polling od the electorate is another feature of the modern political landscape
- A low or deteriorating popularity of the Prime Minister and his government generally is
ks

highly likely to weaken their position, although this can depend on other circumstances.
eg. In 2015 Malcolm Turnbull announced that he was going to challenge the leadership of the
in

Liberal party after the last 30 news polls had reported on Abbott negatively.
Th

-Party can unseat an unpopular Prime Minister

eg. Proved to be a weakness for Tony Abbott and played a major role in limiting the Prime
Ministership of Julia Gillard
Minority government
A government formed by a party which controls less than 76 seats in the House of
Representatives and must rely on the support of non-party MHR’s on motions of confidence
and supply.
eg. 2010 Julia Gillard was able to form a minority government making her dependent on
several non-ALP members of the House of Representatives.
-Adam Brandt a green’s party representative in exchange for his support demanded the
implementation of Carbon tax despite Julia Gillard promising that ‘there will be no carbon
tax under a government that I lead’

Roles of the Ministry and Cabinet

Manage a portfolio- Responsible for a department or department(s) of the public service (the
‘administrative’ executive). Statutory agencies may also fall under their responsibility.
Participate in cabinet meetings- To participate in Cabinet meetings and deliberations on
matters of policy development (especially in their portfolio area), plan political strategy, deal
with crises and help maintain the narrative of the government- the coherent story of what the

21
government is doing and its vision. Cabinet meetings are held in secret and Ministers may
argue and disagree with one another within Cabinet.
Cabinet Solidarity- Publically support Cabinet decisions, even if they disagree with them.
They must ensure that government ‘speaks with one voice.’
Individual ministerial responsibility
-Their personal probity: this means their character; for example, honesty and integrity
-Their political integrity or propriety- this means they do not abuse their Ministerial
power for political or personal advantage.
-The management of their portfolio and department(s) – this means their competence

Powers of Cabinet
Developing and communicating the ‘narrative’ and ‘vision’ of the government
-Ministers have diverse responsibilities yet they must somehow represent the ONE
government.
-Cabinets are influenced by their party’s ideology when developing a narrative.
Developing and implementing policies

t
Specific policies are a government’s action plan. Policies relate to portfolios and need to be

en
coordinated across government. Many policies derive from election promises.
-Policies can be implemented in two ways:
m
Legislation- Laws passed through Parliament may be necessary to implement some
cu
policies, such as the Abbott policy to ‘axe the Carbon Tax’
Regulation- The executive itself, using powers delegated to it under statutes- by
Do

regulation- may implemented others, such as the Abbott Government issuing an

‘investment mandate directive’ to the Clean Energy Finance Corporation to stop
investing in wind power.
p
wa

-Over 95% of legislation introduced into the Commonwealth Parliament comes from Cabinet.
Policies drive this ‘legislative agenda’
-“The Cabinet’s role does not end with a decision. Ministerial oversight and regular tracking
ks

of progress for complex programmes are essential to ensure policies are implemented
in

properly and any problems can be addressed early.”

Coordinating the machinery of government
Th

Political power flows downwards or across (to other arms or other jurisdictions) and
bureaucratic power is guided, restrained and accountable via the Westminster Chain of
Accountability to the people
Acting as an information exchange
Advice comes to Cabinet from many sources including the public service, parliamentary
committee reports, reports from various inquiries and other sources.
-The PM&C and the Cabinet Secretariat provide administrative support to Cabinet and help it
manage the flow of information.
-This function ensures Cabinet power is exercised consistently and in response to correct
information.
Responding to crises
-Events such as natural disasters or international emergencies may impact upon Australia.
eg. 2004 Boxing Day Tsunami and the 2008 Global Financial Crisis had to be dealt with by
Cabinet
-2015 Sydney Siege Cabinet can exercise power rapidly and decisively in these cases

Factors affecting the functioning of the Cabinet

The Prime Minister

22
-Personal history as a leader may have weakened them or strengthened them in the minds of
their colleagues.
Relationships between Ministers (and Parties in a coalition)
-Cabinet may be collegial and consensual or divided by rivalry
eg. Kevin Rudd’s cabinet from 2007 and 2010 was characterised by increasing
dysfunctionality caused by the over-exercise of Prime Ministerial authority
-Abbott Cabinet of 2015 experienced some breaks in unity, illustrated in the case of Barnaby
Joyce, who as the Deputy leader of the Nationals expressed his concerns over the issue of the
Shenhua coalmine in his New England electorate
Timing
-A new government may struggle with decision making because of its lack of experience
while a mature government may make decisions easily and a long-term government may lack
vigour and/or new ideas.
eg. Australia’s most radical government was that formed under Gough Whitlam in 1972, the
Whitlam government is famous for many reasons two being; their haste in government and
their lack of experience after being in opposition for 23 years.
-John Howard is Australia’s second longest serving Prime Minister and his Cabinets were

t
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characterised by strong process and management. One Criticism of the final Howard Cabinet
was that it lacked the vigour to challenge John Howard when all indications were that he
would lead the Coalition Government to a defeat.
Nature of the decision
m
cu
-Some decisions are deliberative with much time and discussion dedicated to them.
Do

-Others may be crisis decisions

eg. Howard Government response to the East Timor crisis in 1999 and 9/11
-The exercise of power is very dependent on the nature of the circumstances Cabinet finds
p

itself dealing with at any particular time.

wa
ks
in
Th

23
Roles Powers and Limits on the Opposition
Define Opposition
The opposition is formed by the party with the second largest number of seats in the House.
The opposition is loyal to the system of government but it is in adversarial competition with
the current executive government.
eg. Labor Party in 45th Parliament

Define Shadow Ministry

The Shadow Ministry is composed of senior members of the opposition party who directly
oppose a corresponding minister.
eg. Penny Wong Shadow Minister of Foreign Affairs Julie Bishop Shadow Minister
Foreign Affairs, Tanya Plibersek Deputy Opposition Leader Barnaby Joyce Deputy Prime
Minister.

Leader of the Opposition

The leader of the Opposition is the leader of the party with the second largest number of seats

t
en
in the House of Representatives and is like a shadow minister for the Prime Minister.
eg. Bill Shorten 45th Parliament
m
cu
Roles of the Opposition
Holding executive to account
Do

The opposition makes use of parliamentary mechanisms to hold the government to account,
both for its general conduct and competence and for its specific actions.
p

Question Time- Question time is a key component of the Parliament’s responsibility function.
wa

-Members may ask two types of questions

-Questions on notice
ks

-Questions without notice

-Ministers must not mislead the Parliament when answering questions Individual
in

ministerial responsibility
Th

Dorothy Dixers- Governments own backbenchers may ask questions of government. Such
friendly questions are rarely probing or difficult for the government and offer an opportunity
for a Minister to speak on topics favourable for the government.
-Question time has become little more than a contest for political advantage
eg. 2017 Dorothy Dixer arranged by Scott Morrison and delivered by Andrew Hastie in order
to discuss a budget in relation to mining
-2017 Tony Abbott delivering a Dorothy Dixer to the Minister for trade “Will the Minister
update the House on how the expanded Singapore-Australian Free Trade Agreement will
support the Government’s plan for jobs and growth?”
Moving motions of no confidence or censure- A motion in parliament is an action that causes
a vote to occur, often after a debate. They are actions by which Parliament expresses
disapproval of a specific action by a member of the executive or its general loss of
confidence in the executive as a collective.
Censure Motions- Censure motions are used by the opposition to highlight a specific act of
the government. Censure motions are the mechanism by which the convention of individual
ministerial responsibility is enacted.
eg. 2015 George Brandis was censured by the Senate which passed a motion declaring him
unfit for office over his handling of the relationship between Attorney General and the
Human Rights commissioner Gillian Triggs

24
No Confidence Motions- A no-confidence motion is similar to a censure motion except that it
is aimed at the whole government. Do not contain references to any particular action of the
government. Mechanism by which the convention of collective ministerial responsibility is
enacted.
Take several forms:
-Direct vote against the government
-Defeat of a core government Bill in the House
-Defeat of a government money Bill in the House
eg. S83 “no money shall be drawn from the Treasury of the Commonwealth except
under appropriation made by law.”
-A loss of government control over business in the House
eg. 1941, the government of Arthur Fadden suffered a budget amendment, reducing spending
allocations by 1 pound and resigned as a consequence
Calling for quorum
A quorum is a minimum number of people required in the House (or Senate) for a valid vote
to take place.
eg. House of Representatives is one fifth the total number of MHR’s. There are 150 MHR’s

t
en
therefor the quorum is 30
-An opposition wanting to frustrate its opponent may call for quorum in order to delay the
proceedings of the House
Refusing pairs’
m
cu
Allows the House and government to function even if some government party members are
Do

absent on electorate business.

-Preserves the balance of power in the House and preserves the government’s majority
-An opposition may frustrate government by refusing to grant pairs
p

eg. Tony Abbott declared that he would decide if and when to grant the PM Julia Gillard a
wa

pair from Parliament

Calling for divisions
ks

There are two methods by which Members vote on motions, on the voices and divisions.
-Divisions are formal votes. Members leave their seats and move to either side of the speaker
in

to indicate their vote. The party whips then count the numbers
Th

-Divisions are time consuming

-If an opposition wishes to frustrate the government delay business of government
eg. Opposition may call for a division in the case of George Chirstensen who has threatened
to cross the floor due to a lack of change to superannuation plans hence displaying the
discontent within government
Good government needs good opposition
A good government is kept honest, sharp and accountable for its conduct and competence is
there is an effective opposition constantly poised to expose every misstep.
-Oppositions need access to information and resources to be able to effectively carry out the
accountability role.
-Oppositions will almost always lose motions on the floor and can at best, only embarrass or
delay the government in its exercise of power
The Senate
Seldom controlled by the government it is usually free of executive dominance.
-Crossbench Senators hold the balance of power
eg. ALP Shorten Opposition used the Senate very effectively against the Abbott Government
by refusing to pass significant parts of its first budget, including the $7 GP co-payment, the
Paid Parental Leave Scheme, the Higher Education Funding Scheme as well as the Australian
Building and Construction Commission Bills

25
Media
Freedom of the press is a key principle of democracy.
-Opposition may exploit media reports of government maladministration or wrongdoing
eg. ABC Four Corners program is an example. In 2016 Four Corners investigated and
reported on the mistreatment of Aboriginal juveniles in detention in the Northern Territory
Royal Commission
-Whistle-blowers are people inside the government or employed in agencies contracted by
the government who learn of corruption, incompetence or wrongdoing and report these, often
to the media.
eg. The Public Interest Disclosure Act 2013 provides protection for whistle-blowers from
prosecution if their information leads to the discovery of genuine breaches of law.
-September 2016 Mark Dreyfus successfully appealed through the Federal Court to force
Senator George Brandis to release his diaries under the FOI Act
-Investigative journalism is expensive and if successful may reveal information that an
opposition can co-opt for the purpose of holding the government to account. Media also
investigates the opposition, including its past terms of government, so it can be a double
edged sword

t
en
Being a viable alternative government
The Westminster System can see the fall of a government between elections if it loses the
m
support of the House of Representatives. This means that the Opposition must be ready to
cu
assume the government at any time.
Governments are made and unmade by the House of Representatives
Do

-A government will fall is the House majority no longer has ‘confidence’ in it.
eg. Fadden Government was forced from office in 1941 when the House voted to reduce its
budget by 1 pound. This was an expression of no confidence.
p

-Fadden government lasted only 40 days and was based upon a hung parliament hence
wa

Fadden was reliant on 2 crossbench members, who eventually crossed the floor to John
Curtain allowing him to become government despite the lack of election.
ks

Being prepared for government

-Have its own policies
in

eg. Liberals reversal of the Gillard governments Clean Energy Acts

Th

-Present a unified coherent vision to the nation

-Present as competent and ready to govern

Factors affecting the success of an opposition

Impartiality of a speaker- The speaker is drawn from the house of representatives.
-In theory the speaker acts as the referee of the house.
-The impartiality of a speaker relies upon the character of the person occupying the office.
eg. Harry Jenkins was the Speaker (2007 -2011) of the 42nd and 43rd Parliaments. He was
well respected by both sides and is regarded as an impartial speaker, a motion of confidence
in the Speaker passed with bipartisan support.
-Bronwyn Bishop (2013-2015) became a controversial speaker with allegations of bias made
against her by the ALP opposition. Bronnie became involved in a helicopter scandal and this
was used by the opposition to have her removed.
Lack of resources
An opposition is limited by a lack of resources in its capacity both to hold the executive to
account and to formulate detailed and properly costed policies to take to the election. It is
difficult for an opposition to find the necessary information to hold a government to account
effectively and it is relatively easy for an opposition to trip on technicalities or be shown to
be incompetent and unfit to govern.

26
eg.*
Executive government
At the heart of most of the above limitations to the effectiveness of the opposition is the
overwhelming dominance of the executive government over both the House of
Representatives and the sources and flows of information.
eg.*

Overcoming the limitations of Opposition

Third Party research
Increasing use of third parties, such as accounting firms, think tanks and academic research
centres to provide detailed analysis of government policy.
eg. The Shorten Opposition commissioned the National Centre for Social and Economic
Modelling to do an analysis of the Abbott Government’s second budget in 2015
Reforms
Various proposals to address this problem have been made such as the Charter of Budget
Honesty or the provision of additional staffing and other resources to oppositions but they

t
usually get nowhere.

en
eg.*

m
cu
Do
p
wa
ks
in
Th

27
Governor-General

Definitions
Governor General
The representative of the monarch in Australia. Established by section 61 of the Constitution
and exercises the executive power of the Commonwealth, which is formally vested in the
Queen. Powers are bound by Westminster constitutional conventions. Possesses express
formal and reserve powers.
Express Powers
Powers codified in the Constitution. The Governor General possesses express executive
powers. The Commonwealth Parliament express legislative and financial powers.
Reserve Powers
Powers of the Governor General codified in the constitution and exercisable without advice
in emergencies.
eg. Section 28 and Section 64
-Sir John Kerr’s use of the power under Section 64 of the Constitution to dismiss Prime

t
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Minister Gough Whitlam in 1975.
Federal Executive Council
m
The formal executive. A council created by Section 62 of the Constitution and compromising
cu
the Governor General and ministers. Referred to by the acronym EXCO and is not the
cabinet.
Do

Proclamation
The final stage in the passage of a Bill. Bills are published in the Government Gazette and
p

once proclaimed become an act of parliament which is law.

wa

Prorogue
To bring Parliament to an end without dissolving it. Section 5 of the Constitution grants this
ks

power to the Governor General.

eg. 2016 Double Dissolution election
in

Circular Accountability
Th

A situation in which two parties hold each other to account. The Prime Minister and the
Governor General each hold the power to dismiss each other.
Writs
A written command by a court or another body or person with the legal authority to issue
command. Courts issue writs of mandamus. The Governor General issues writs for an
election.
Double Dissolution
The governor general may dissolve the parliament using powers under Section 57 of the
Constitution is the two houses cannot agree on a Bill. A bill which is twice rejected by, or
fails to pass, the Senate may become a trigger for a double dissolution election. Section 57
powers are always exercise on the advice of the Prime Minister.
eg. Double Dissolution election 2016
Governor-General in Council
The governor in concert with ministers. The Federal Executive is created by Section 62 of the
constitution.
Governor-General office
The power of the governor general ie. The title.
`

28
Legislative roles
-Outlined in Chapter 1 of the constitution
-Governor-General usually exercises legislative power under the advice of EXCO.
Proclamation- Of a parliamentary session within 30 days after and election. eg. Section 5
Proroguing- Or suspending Parliament between sessions and dissolving the House after an
election. eg. Section 5
Dissolving- The House. eg. Section 28
Writs- Issuing writs for a general election. eg. Section 32
Dissolving both houses- Event of a double dissolution election and convening a joint sitting
of the Parliament. eg. Section 57
eg. Governor General Sir Peter Cosgrove exercised his legislative power under Section 5 to
recall Parliament on the advice of the PM Malcolm Turnbull on 18 April 2016 which allowed
the Senate to debate the ABCC Bill.
-8 May 2016 PM required GG use of power under S57 to call a double dissolution, after
recall of parliament failed to result in the passage of the ABCC Bill through the Parliament
twice in 3 months.

t
en
Executive Roles
-Outlined in chapter 2
m
-S61 executive power is vested in the Queen and is exercisable by the Governor General.
cu
Select and Appoint- The governor general is to select and appoint a Federal Executive
Council (EXCO) eg. Section 62
Do

Advice- Governor General is to act on advice of EXCO eg. Section 63

Appoint and dismiss- The governor general has the power to appoint and dismiss ministers of
State. eg. Section 64
p

- Appointment of senior government officials. eg, Section 67

wa

eg. Section 68 the Governor General is commander in chief, the reality is that the Minister of
Defence (currently Marise Payne) who ultimately holds this responsibility as the Governor
ks

General will according to Westminster convention act of the advice of the minister
in

responsible for the portfolio.

-The involvement of the GG adds legitimacy
Th

Ceremonial Roles
-Receiving and entertaining visiting Heads of State, Heads of Government and other
prominent visitors to Australia
-Opening new session of the Commonwealth Parliament
-Receiving the credentials of foreign diplomats and High Commissioners appointed to
represent their Countries in Australia
-Conducting investitures at which people receive awards under the Australian Honours
system

29
Non-Ceremonial Roles
-Represent and reflect what it is to be Australian.
eg. Sir Ninian Stephen who was the governor general from 1977 to 1983 expressed that the
role of GG meant “to represent Australia itself”
-Travel widely to meet with people from all walks of life
-Accepting patronage of various charitable, cultural and other organisations
eg. Quentin Bryce made patronage of the Red Cross one of the non-ceremonial roles of the
GG
-Attending services and functions
-Speaking and opening national and international conferences
-Presenting awards at major public functions

Express Powers
-Dissolution of Parliament
-Issuing writs for a new election
-Granting of royal assent eg. Section 58
-Acting under advice of Ministers

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en
-Appointing federal judges eg. Section 72
-Appointing high commissioners to overseas countries and other senior government officials
m
-Establishing Royal Commissions of Inquiry eg. Institutional response to child sexual abuse
cu
-Exercising the prerogative of mercy
-Authorising executive decisions made by ministers
Do

Reserve Powers
p

-Appoint a Prime Minister if an election has resulted in a hung parliament. eg. Section 64
wa

eg. Julia Gillard 2010 hung parliament, once Gillard received support from independents the
GG Quentin Bryce appointed Gillard Prime Minister
ks

-Dismiss a Prime Minister if they have lost confidence of Parliament eg. Section 64
eg. Whitlam Dismissal
in

-Dismiss a Prime Minister when he or she has acted unlawfully eg. Section 64
Th

-Refuse to dissolve the House despite a request from the PM eg. Section 5 and 28

The Whitlam Dismissal

What happened- November 11 1975 Whitlam government dismissed by Governor General
Sir John Kerr
-After dismissal Whitlam appointed Malcolm Fraser (opposition leader) as a temporary PM
on the condition that he call an election at the earliest convenience.
How did it occur- The Whitlam government had lost control of the Senate through the loss of
two Labor Senators who were not replaced by Labor appointees (S15) as was the convention.
-Senate now Hostile to Whitlam government, which was manifested in the refusal to pass the
Supply Bill needed to allow the commonwealth to draw money required to cover the normal
expenses of government
By convention the Senate is expected to pass Supply Bills even when the
government does not correspond to the balance of power in the Senate
-The constitution states in S83 that no money can be drawn from the treasury unless passed
by law and S58 states that no law can be passed without the approval of both houses
How did the GG justify his action- Section 64 grants the governor general the reserve power
to Dismiss a prime minister if he/she has acted unlawfully
The Senate’s refusal to pass the supply bill is a motion of no confidence

30
-Section 15 meant that casual vacancies in the senate were not filled by Labor representatives
hence causing hostility in the senate.
What conventions were smashed- That the governor general make no political decision
without the approval of the prime minister.

t
en
m
cu
Do
p
wa
ks
in
Th

31
Mandate

Mandate
A claim to the legitimate exercise of power. In a democratic system such as Australia, the
only legitimate claim to power is that which is derived from the people.

Historical points of interest

-Divine right of kings
Derived their right to rule from God.
eg. Tsar Nicholas II
-The sovereign state, led by a sovereign (king, emperor)
Derived right to rule via hereditary birth right
-A sovereign could keep order through oppression. A necessary evil. A social
contract, the leader keeps order and the people support the leader.
However…
-Locke, Rousseau and others advocated an alternative: The popular Sovereign

t
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-Popular sovereign suggested power should lay with a choice of the people
-People were inherently good and would make the best choice
-Inspired by Age of Enlightenment thinkers m
-People would delegate authority, in this social contract, to a government to act on their
cu
behalf. A representative democracy via elections.
Do

The will of majority mandate

-Fostered by a democratic viewpoint.
p

-The House of representatives reflects the ‘Will of Majority’

wa

Preferential voting and equal electorates

Government mandates can allow for:
ks

Specific Mandate
in

- Passing specific legislation

eg. ABCC legislation
Th

eg. 1998 election. Howard 2nd term. Promised GST if elected. Voted in and brought in GST
2010 election.
-Repealing existing laws
eg. Carbon and Mining tax
General Mandate
-Adopt a general approach to particular/specific area
eg. Stop the Boats
-Broad changes, based upon party ideology
eg. Abbott’s 2014 Budget, GP surcharge $7 GP co-payment, Senate claimed that he had no
mandate to do something not mentioned in the election. However, Tony Abbott claimed that
due to the Liberal ideology being based upon economic growth, that his decision was valid.
Arguments for
-Section 7 eg.“Composed of members directly chosen by the people”
-People’s House; electorates are roughly divided equally among the people
-Governments House- to form government must have the confidence of the house
-By convention PM must have support of the lower house
-Executive power is in reality derived from the government which is formed by the majority
in the House of Reps- well understood by the electorate
-Preferential voting allows for the most popular candidate to be chosen

32
eg. Preferential voting was first introduced in the 1919 general election and is found in the
Commonwealth Electoral Act 1918
Arguments against
-Unicameral system: S7 establishes the Senate and S53 grants them equal powers with
exception to appropriation bills. Therefore, the Senate has power and a legitimate claim.
-Full preferential voting system encourages a two-party system.
eg. 1998 election where Kim Beazley despite gaining 50.98% of two party preferred did not
secure the election due to electoral system
eg. About 25% did not give their primary vote to the major parties/coalitions in 2016
-Underplays the role of the Senate
-58% did not give their vote to the Turnbull government
-Executive can control the House of Representatives and they are not directly elected

eg. 2010 election. Julia Gillard ‘there will never be a carbon tax under a parliament I lead”.
Hung parliament, Gillard wins majority by agreeing to enact tax.
eg. 2013 election. Tony Abbott promises fiscally safe government. First budget: cuts to

t
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education, health and the ABC.
eg. Paul Keating’s 1994 reversal on promised tax cuts, John Howard’s 1997 distinction
between core and non-core promises m
eg. 2004 the election promise of the then ALP opposition leader, Mark Latham, to bring
cu
Australian troops home from Iraq by Christmas.
Do

Balance of Power mandate

-Fostered by a liberalist viewpoint which believes in fairness and equity rather than majority
p
wa

-Senate has a mandate regarding the creation, amendment and repealing of legislation.
Arguments for
-Section 7 allows for the direct election by the people of the Senate
ks

eg. “The Senate shall be composed of senators for each State, directly chosen by the people
in

of the State”
-Section 53 apart from appropriation bills grants the senate equal powers to the House
Th

eg. “the Senate shall have equal power with the House of Representatives in respect of all
proposed laws.”
-Dual voters: an established tendency of about 15% of people who vote for a different party
or individual in the Senate compared to the House of Representatives. Indicating a desire to
have a clear check on government power, arguably a mandate also.
-STV Proportional Representation allows for quota and there for a more reflective set of
representatives compared to the House of representatives. This is demonstrated by the
increased number of minor parties in Senate in comparison to the House. Minorities are better
represented.
eg. Proportional voting in the senate introduced via the Commonwealth Electoral Act of 1948

33
Arguments against
-State based and thus malapportionment can occur.
eg. Tas v NSW not reflective of the will of the people
-Small states are disproportionally represented and thus the Senate cannot claim a mandate. If
an individual such as Xenophon from SA (smaller state), can decide legislation can pass-
such an individual can hold a huge amount of power, arguably more than they should.
-Group voting tickets means that parties as opposed to individuals are voted for (90%+ vote
this way). Suggests that a personal mandate does not exist especially given that individuals
vote on the Senate and not parties. ‘Below the Line’ voting is impractical compared to
‘Above the Line’ voting.
eg. Jacqui Lambie on 24th November 2014 resigned from the Palmer United party and
remained in the Senate as an independent
eg. Rod Culleton was deemed no longer eligible to be a senator and as result under section 15
of the Constitution his position is now being filled with his brother in law Peter Georgiou.
This was allowed to occur as 96.04% of the votes Culleton received were actually above-the-
line votes for One Nation.
-Preference harvesting has existed in the past prior to the 2016 Senate Reforms to the Senate

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voting methodology.
eg. Ricky Muir gaining seat in the 44th Parliament despite only winning 0.51% of the vote

The Right to Oppose Mandate

m
cu
The opposition, particularly via the Senate or Minority government can claim the right to
Do

oppose the agenda of the government on the grounds their election has been based on a
different set of perspectives and expectations of their electors.
Arguments for-
p

-Opposition is elected via the same means as the government and is representative of a
wa

considerable minority of the people

-Westminster convention states that the party that gains the second largest number of seats in
ks

the House of Representatives becomes the opposition

in

-1998 election Kim Beazley despite winning the two-party preferred percentage with 50.98%
of the two party preferred notes failed to win the election due to the electoral system.
Th

Arguments against-
-2009 the Labor government negotiated with the Liberal opposition under Malcolm Turnbull
to secure passage of carbon price legislation, even amending the bill to gain Liberal party
support. Then there was a last minute coup and, against expectations, Abbott squeaked into
the Liberal party leadership with a one-vote victory over Malcolm Turnbull. Abbott
immediately reneged on the agreement.
-So not only did Abbott ignore Labor’s mandate, he abandoned his own election promise and
shredded a deal his party had made just days earlier.

34
Disrespecting and Respecting Mandates
Nelson Opposition respects the WorkChoices mandate
-Kevin Rudd claimed a sweeping mandate from the people to ‘scrap Workchoices’
-When the Bills to achieve this were introduced they were passed unopposed even
being supported through the Senate by the Liberals who had passed WorkChoices in
the first place
-Brendan Nelson the Liberal opposition leader declared that the Liberal Party had “listened
and learned” that WorkChoices was ‘dead’ and would never be reintroduced by the Coalition
-Joe Hockey admitted that the Rudd government had been given a strong specific mandate
from the people at the election to repeal WorkChoices
Turnbull Opposition respects the CPRS mandate
-Turnbull continued the Opposition’s support of the Rudd Government’s ‘mandated’ policy,
notably the Carbon Pollution Reduction Scheme (CPRS)
Key election promise
-Turnbull was respecting the Rudd government’s specific mandate
Abbott Opposition rejects the CPRS mandate but supports the WorkChoices mandate
-2010 Tony Abbott had defeated Malcolm Turnbull in a Liberal Party leadership spill by a

t
en
single vote
-Abbott strongly against CPRS, standing against Rudd’s mandate claims and used the
m
Liberal’s Senate position, with the help of the Greens to block the legislation
-Abbott continued to maintain that Work Choices were “dead, buried and cremated”
cu
Do
p
wa
ks
in
Th

35
Power to Influence Law Making

What is Law
The Law is a collection of formal regulations, made and enforced by a sovereign authority
that governs society by controlling the behaviour of its members.
Law is found in:
Constitutions- A superior or fundamental form of law.
Legislation- Statutes made by a democratically elected legislature.
Judicial decisions- Precedents made by judges in courts on particular cases.
Regulations and ordinances- Made by the executive under austhority delegated by
Parliament via legislation
Other forms of social control:
Customs and traditions- Influence people’s behaviour. Learned by immersion in a
particular society and enforced by social sanctions
Morals- Codes of right conduct. They are learned by immersion in culture and are
often embedded in religion.

t
Rules- Apply to specific people.

en
Law differs from customs, traditions, rules and other forms of social control in the following
ways:
m
Law is universal- It applies equally to persons within its jurisdiction at all times
cu
Law is enforced by the state- The executive has a monopoly on the legitimate use of
force and uses this coercive power to give effect to law.
Do

eg. Thomas Hobbes described law as: “the formal glue that holds fundamentally disorganised
societies together.”
p
wa

Classification of Law
Superior or Fundamental Law
ks

-Superior or fundamental law is located in constitutions.

Ordinary Law
in

-The law making institutions established by the Constitution produce ordinary law.
Th

Parliaments make statute law and courts make common law.

Statute Law
-Statutes are acts of Parliament.
-Made by statutory process
-The two houses of Parliament are “chosen by the people” making it a democratic institution.
-Acts therefor have a democratic legitimacy
Policy Legislation- Implement an executive government’s programme of policy.
eg. Abbott Government passed the Clean Energy Legislation (Carbon Tax Repeal) Act 2014.
This Act implemented the Abbott Government’s policy to ‘scrap the Carbon Tax’.
Financial Legislation- Laws that authorise the raising of taxes and the spending of
government money.
eg. Annual Budget- a series Bills that legislate for the collection of revenue and allocation of
spending for the year ahead and beyond.
-Money Bills are special because Section 53 of the Constitution requires that they must
commence in the House of Representatives
Amending Legislation- Laws may be passed that alter existing statutes.
eg. Renewable Energy (Electricity) Amendment Act 2015. This law implemented the
government’s policy to reduce the renewable energy target.

36
Consolidating Legislation- Repeals existing Acts and then re-enacts their provisions,
incorporating all amendments into a single act. `
eg. April 2010 Rudd Government proposed to consolidate four antidiscrimination Acts (the
Racial, Sexual, Disability and Age) and parts of the Australian Human Rights Acts 1986 and
Fair Work Act 2009 into one statute that would strengthen Australia’s human rights
framework. This proposition was never passed.
Repealing Legislation- Acts who sole purpose is to establish existing Acts are called repeal
Acts.
eg. Omnibus Repeal Day (Autumn 2014) Bills 2014

Common Law
-Judges make decisions based upon the doctrine of precedent
-The doctrine of precedent is based on the principle of stare decisis, meaning to stand by what
has been decided
-The decisions of past cases are found in the ratio decidendi the ‘reason for decision’ in those
prior cases
-The entire body of common law is composed of such precedents that are published in law

t
en
reports
-Lower courts are bound by the decisions of higher courts. Courts may be persuaded by the
m
decisions of equivalent courts, lower courts or courts in other common law jurisdictions
cu
-Common law is always inferior to statute law and can be abrogated by Acts of Parliament
eg. Marriage Equality (Same Sex) Act 2013, Commonwealth v ACT (2013)
Do

-The justification for the superiority of statute law over common law is that is has democratic
legitimacy
Judges are appointed not elected
p
wa

Influencing common law

-When individuals, pressure groups or political parties attempt to influence common law it
ks

will always be as a ‘party in a case’

in

-The party will the argue on the basis of the facts of the case (the evidence) and how the law
(statute or common) should be applied and interpreted.
Th

eg. Mabo 1992, overturning of common law

-Williams (No.2), invalidation of statute law

Delegated Legislation, regulations and ordinances

Regulations and Ordinances- Low level laws made by the executive using powers delegated
to it by Parliament via an Act.
Delegated Legislation- Allows for the periodic update of laws, such as the annual indexation
of pensions and benefits, which would otherwise require the main Act to be amended by the
Parliament.
-Parliament oversees how this power is used and may withdraw the authority or disallow
regulations, if it feels the executive has abused its delegated power.

37
Parliament and the Courts
There are two principle law making institutions within the Australian political and legal
system; the Parliament and the courts.
The Parliament The Courts
Being Democratic Being authoritative
-No other institution in the system is -Courts rely on deeply entrenched legal
directly elected by the people. Section 7 and maxims and norms that have evolved over
24 require each house be ‘chosen by the centuries. A hierarchy of courts reinforces
people.’ this tendency, with only superior appellate
courts capable of creating new common
law.
Being Sovereign Being Apolitical and independent
-Parliamentary sovereignty is the principle -Courts tend to respect the separation of
that the Parliament is the final authority on powers and interpret statute and common
all law. law literally and legalistically.
-Federalism divides sovereignty between
the Commonwealth and state parliaments

t
en
rendering the Commonwealth Parliament’s
sovereignty defined and limited.
Being Superior m
Being Inferior
cu
-To other law making institutions, including -The principle of ‘rule of law’ applies to
the courts and executive agencies’ courts and judges. They are subject to
Do

regulations. stature law.

-Parliament is superior due to its democratic -Parliament may override common law
and sovereign nature -Common law created by courts does nto
p

have any democratic legitimacy, that is why

wa

it is inferior.
Being flexible, responsive and proactive Being incremental and reactive
ks

-Parliament can legislate new Acts and -Law made by the courts (called case law or
in

repeal and amend existing ones common law) develops case by case and
-Statute law is general and in futuro (future) always after the facts which gave rise to a
Th

-It can develop quickly and is a response to new precedent (ex post facto)
anticipated situations -Develops slowly and in respose to
unforeseen events

Individuals and their influence on law making

-Usually not influential
-Lack resources
-Lack access to key decision makers such as government ministers
-Lack organised support

38
Ronald Williams
Challenged the constitutionality of the Commonwealth’s Schools Chaplaincy Program.
Williams v Commonwealth of Australia (2012) HCA 23 “Williams No. 1”
-High Court found that Section 61 (the power establishing the Commonwealth executive) did
not permit the government to fund the National Schools Chaplaincy Program (NSCP)
-This case helped define and limit the prerogative powers of the executive
Prerogative Powers: Actions the executive government can take without the approval
of parliament. Limited to those actions that the Parliament itself cannot pass a law to
enact. A declaration of war is an executive prerogative.
-In response the Gillard Government rushed new laws through Parliament to cover payments
under 427 grants and programs it could no longer fund without legislation
-The High Court decision led to the government legislating in Parliament under Section 51
(xxiiiA), the social services power
Williams v Commonwealth of Australia (2014) HCA 23 “Williams No.2”
-Against the Constitutionality of using Section 51 (xxiiiA) to pay for the Chaplaincy Program
-The High Court found that the payments were not ‘benefits to students’ and struck down the
amendment to the Financial Management and Accountability Act 1997, it was found to be

t
en
ultra vires.
-According to the court, using Ejusdem Generis, it found that benefits under S51(xxiiiA)
must be paid directly to the beneficiary m
-This case meant that the Abbott and Turnbull governments now had to fund the program
cu
under S96 as a specific purpose payment. Meaning that States had the ability to refuse the
Do

grant or interpret the conditions how they pleased.

Why was Ronald Williams Successful?
-Highly motivated
p

-Able to fund his case as his cause attracted donations from many like minded parents and
wa

other supporters of secularism.

ks

David Manne
in

-Human rights lawyer and executive director of the Refugee and Immigration Legal centre.
-Manne headed RILC’s legal teams in the recent successful High Court challenges in the
Th

cases of:
-Plaintiff M61 (regarding the government’s recent ‘offshore processing’ regime in
Australia.)
-Plaintiff M70/M106 (the Malaysian solution case)
-Plaintiff M47 (challenging the security assessment and indefinite detention of a
refugee)
-Plaintiff M76 (regarding indefinite detention of a refugee on security grounds)
-The RILC is a cause-based pressure group
The Malaysia Solution- The Gillard government signed a deal with the Malaysian
Government dubbed the ‘Malaysian solution’. The Government proposal was that Australia
would swap 800 asylum seekers held in detention centres for 4000 refugees waiting in
Malaysia for resettlement.
-In the High Court case they ruled 6-1 that the government does not have the power to send
asylum seekers to Malaysia for detention and processing. Under S198 Migration Act 1958.
Why was David Manne so successful?
-Support from pressure group with resources
Antony Green
-In 2014 the joint Standing Committee on Electoral Matters invited submissions from the
public and other stakeholders concerning reforms to the Senate electoral system.

39
-Antony Green wrote a submission arguing for the abolition of the group voting ticket,
allowing voters to number party preferences above the line and introducing optional
preferential voting below the line.
-The parliament accepted the JSCEM recommendations and The Electoral Amendment Act
was passed in 2016
Why was Antony Green Successful?
-Respect
-Public profile as an election expert and analyst

Independent Members of Parliament

-Independent members of Parliament can be successful in influencing law
-Influence is particularly strong in a hung parliament
Rob Oakeshott and Tony Windsor
-Helped to form Gillard’s minority government
-Represented regional electorates
-Fast broadband and water management in the Murray Darling River system were both high
priorities to them

t
en
-Gillard government committed $1.7 billion to the Murray Darling Basin Plan
Adam Bandt
m
-In exchange for his support in a minority government made Julia Gillard enact a carbon tax
cu
despite her stating that “there will never be a carbon tax under a government I lead.”
Why can independents be successful?
Do

-The capacity of independents to influence law making may increase over time as electors
drift away from the Liberal National Coalition and the ALP and increasingly support
independent Members of Parliament.
p
wa

What makes individuals successful in influencing law making?

-The individual has resources
ks

eg. Clive Palmer

in

-The individual is an independent and or has a position of power within the Parliament
eg. Cathy McGowan, Andrew Wilkie, Tony Windsor and Rob Oakeshott
Th

-The individual is persistent

eg. Ronald Williams, Eddie Mabo
-The individual has skills and/or backing from a pressure group
eg. David Manne
-The individual has a public profile
eg. Antony Green, Peter Garret

Private Members Bill

40
Political Parties
Definition
-Tend to have a broad focus
-Seek to win seats in Parliament with the express purpose of influencing legislation either by:
-Winning government (major parties)
-By forming coalitions with a major party
-Exercising influence over the passage of legislation through holding the balance of
power in the Senate
-By engaging in preference deals with other parties prior to elections in return for
influence over their policies.
Major parties
-The ALP forms government in its own right when it wins a majority of House of
Representatives seats such as with the first Rudd Government (2007-2010). The Gillard
Government (2010-2013) was an ALP minority government, which held office with the
support of the Greens and some independents.
-The Liberal Party forms government in partnership with The Nationals, a minority party

t
with a similar political ideology. The two parties sign a formal ‘Coalition Agreement’

en
between the two leaders after each election.
Minor Parties
m
-Parties with enough support to regularly win some seats in either or both houses of
cu
Parliament but not enough to form government.
-The Australian Greens and The Nationals are minor parties
Do

-The Greens regularly win a number of Senate seats (nine in the 45 th Parliament) and
currently hold the seat of Melbourne in the House of Representatives.
p

-The Nationals win rural seats in some states and have had continuous representation
wa

in both houses for decades.

Micro Parties
ks

-May win a seat, usually in the Senate

-Micro parties with representation in the 45th Parliament include:
in

-One Nation, with four Senators including the party founder Paulin Hansen
Th

-Nick Xenaphon Team

-Jacqui Lambie Network
-Family First- Bob Day
-Liberal Democratic Party
-Derryn Hinch’s Justice Party

41
How Political Parties Influence Law-Making
Winning Elections
-Will deliver complete control over the House of Representatives through executive
dominance
-Will provide the party with a democratic mandate
-Most Australian governments are majority governments and so enjoy a strong mandate
-This is the greatest source of influence over parliamentary law making within the political
and legal system
eg. -Deciding of the Senate terms
-In 2016 the Coalition and Labor Senators teamed up to decide who the six year senators and
3 year senators will be in light of the double dissolution election.
-“Following a double dissolution election, which clears all seats, the Senate is empowered to
decide how six and three-year terms are assigned.” –Adam Morton
-The order of election method backed by the government and opposition sees the first six
senators elected in each state serve the 6 year terms and the remaining serve the 3 year terms
-“With the Coalition and Labor’s combined 56 votes in the 76 seat Senate their preferred plan
is guaranteed to pass.”

t
en
-With the support of both the Coalition and Labor it essentially renders the cross bench
useless
m
-“If the Labor Party and the Liberal Party agree, it makes the minor party members
cu
irrelevant” –Rod Tiffen (Specialises in Australian politics and comparative democratic
policies.)
Do

Being the junior partner in a governing coalition

-The Nationals are the junior party in Liberal National Coalition governments
p

-The Nationals are able to gain some ministerial posts in Cabinet and participate in ‘join party
wa

room’ meetings with the Liberal Party

eg. Nationals successfully blocked the sale of Grain Corp to American company Archer
Daniels Midland early in 2014.
ks

eg. In 2015, the Nationals were able to combine with the right wing of the Abbott-led Liberal
in

Party to prevent the debate of marriage equality laws.

Th

Being a Minor Party whose support keeps a minority government in office

-If the party is a minor party whose support is necessary to maintain a government’s majority
in a hung parliament it will have enormous leverage over the governing party
eg. Green’s Adam Bandt together with several independents agreed to provide ‘confidence
and supply’ to Gillard’s ALP so it could form government.
-The Greens were able to force through Carbon Tax despite Gillard stating that “there will be
no Carbon Tax under a government I lead.”
Being a minor party with the Senate balance of power
-A party has a Senate balance of power when:
-The Opposition opposes a government Bill
-The minor party possesses sufficient Senators that they may vote with the
government to pass the Bill or against the government to reject the Bill
-The Senate balance of power gives a minor party moderate power to negotiate with the
government for amendments
-Two parties have exploited this power successfully:
-The Australian Democrats during the period 1985-2005 (with the GST being the
most well-known law over which they had influence)
-The Greens who continue to influence contemporary legislation including, for
example, the Electoral Amendment Act 2016

42
 -Between July 2014 and July 2016 the Palmer United Party shared the balance of
power with other minor parties and independents. It supported the repeal of carbon
tax.
Being a major party forming the Opposition
-If the party forms the Opposition and is able to ally itself with balance of power parties in
the Senate to block or amend government Bills, it will be able to reject or force amendments
to laws.
eg. The ALP opposition was successful in defeating the Carbon Tax and Mining Tax Repeal
Bills in 2014.
eg. The ALP was also successful in rejecting significant parts of the Abbott Budget

Parties and the Courts

-Parties can also influence law making through the courts but this is rare
eg. Senator Bob Day challenged the constitutionality of the Electoral Amendment Act 2016
before the July 2016 election, the High Court withheld the validity of the act.

t
Pressure Groups

en
Definition
m
Pressure groups are associations of individuals with broadly similar views that:
-Tend to focus on a narrow set of objectives
cu
-Seek to influence law making in Parliament and/or the courts either by:
-Lobbying
Do

-Taking direct action

-Using the courts
p

-Using the media

wa

-Contributing political donations to a political party

Types of Pressure Groups
ks

Sectional Groups- Represent the self-interest of sections of the community.

-Sectors typically represented include;
in

-Business
Th

-Particular industries (mining)

-Labour (workers in a particular industry)
-Professions (medicine)
-Other
eg. Business Council of Australia
-Minerals Council of Australia for mineral companies
-The Australian Council of Trade Unions
-The Australian Petroleum, Production and Exploration Association for energy companies
Cause Groups- Motivated by a principle, aim or movement which they perceive of benefit to
the whole of society.
-Known as promotional and altruistic
-Promotional because they advocate for their cause- they promote it.
-Altruistic means self-sacrificing. Cause groups do not promote their cause for their
own interest, instead they expend their efforts and resources for the good of society,
as they see it.
eg. Recognise- Supports constitutional recognition of Aboriginal and Torres Strait Islanders
and the removal of race specific sections of the Australian Constitution.
The Australian Conservation Foundation- Supports environmental protection and
conservation

43
Australian Marriage Equality- Advocates for marriage rights for same sex couples
Mackay Conservation Group- Opposes the Adani Carmichael coal mine in Queensland.
Hybrid Groups- Combine features of both sectional and cause groups.
-They advocate for the interests of a section of society but also for related policies which they
believe are in the wider interests of society.
eg. Returned Services League- Advocates for better treatment of returned soldiers, sailors and
air force personnel and at the same time promotes defence in the national interest
Australian Medical Association- Advocates on the behalf of the medical profession but also
promotes the health interests of all Australians through lobbying for increased support for the
healthcare system
Peak Bodies- Many pressure groups belong to the larger associations of similar pressure
groups.
-Such national associations, composed of smaller groups, regional or state associations are
known as peak bodies.
-Peak bodies possess greater power to influence law making than their individual member
associations and groups
-This is because they are larger and have more resources but also because they are able to

t
en
represent interests at the Commonwealth level.
eg. Many trade unions are members of the Australian Council of Trade Unions (ACTU).
m
Each state has a farmer’s associations- in WA it is the WA Farmers. Each state’s farmers’
groups belongs to the National Farmers’ Federation.
cu
Other ways to classify pressure groups
Do

Insider Groups- Groups that represent important sectors of society or the economy are
regarded as legitimate by government
-Governments will often respect their advice or even seek it out before making laws.
p

-Raise funds through membership fees

wa

-Employ professional staff, such as lobbyists, lawyers, advertising and marketing personnel
-May have offices in Canberra close to the seat of power
ks

-Mirror the structures of the companies they represent with a strong hierarchical organisation
and high often restricted; they are exclusive
in

-They can be formidable organisations

Th

eg. NFF is very close to The Nationals they both represent the same constituency.
-The mining sector of the economy is another case in point with the Minerals Council of
Australia being an example of this.
Outsider Groups- Many cause groups are outsider groups because they represent causes,
principles or aims that are less central to the core business of government- the economy in
particular.
-These groups are usually poorly resourced, relying on donations of time from volunteers or
money from sympathisers
-They lack the professionalism and centralised organisation of insider groups
-High degrees of motivation because their members passionately support the cause they
represent
-Their effectiveness is variable
eg. Marriage equality is an example of a cause that has become prominent in recent years.
Due to progressive moves from other countries throughout the world toward Marriage
Equality the Australian Marriage Equality is enjoying more influence than it would if the
circumstances were different.

44
Pressure Group Strategies
Direct Lobbying- Direct Lobbying is directly meeting or communicating with law makers
-Effective lobbyists are often former politicians and Ministers who have contacts with
decision makers
-Lobbyists use inside knowledge to gain access to and influence those with power.
-Insider groups and sectional groups use direct lobbying because government is likely to pay
attention to them and they have resources with which to establish offices and employ
professional staff in Canberra
eg. Clubs Australia lobbied the Gillard Government to prevent the introduction of tough anti-
gambling laws. Gillard had promised to introduce the laws in return for the support of anti-
gambling Tasmanian Independent Andrew Wilkie. After the defection of Peter Slipper from
the Liberal Party, Gillard no longer needed Wilke’s support and in January 2012 backed
away from anti-gambling laws under pressure from Clubs Australia.
-Lobbyists who work for insider/sectional pressure groups must be registered with the
Department of Prime Minister and Cabinet (DPMC). They are presently over 260 lobbyists
on the register.
-Powerful lobbyists can distort Australian democracy

t
en
-They can persuade governments to make laws that favour their private interests over the
public interest.
m
-The Registration of lobbyists helps keep direct lobbying transparent and permits the media
and the people to see how powerful groups and the government interact.
cu
Submissions to Parliament- A submission is a statement or argument from a party (for
Do

example, an individual, company or pressure group) seeking to influence the law making
process in Parliament.
-Parliamentary committees investigate specific areas of legislative action and provide
p

detailed reports and recommendations to the Parliament.

wa

-Committees also propose amendments

-Parliamentary inquiries are special investigations established by the Parliament into a
ks

particular matter
-May be carried out by standing committees or by specially established select committees
in

-Parliamentary inquiries report their findings of their investigations to the Parliament.

Th

eg. Parliamentary Joint Committee on Human Rights (PJCHR)

-This committee investigates the human rights implications of legislation passed by the
Parliament
-In 2013 the PJCHR carried out inquiry called the ‘Examination of the Migration (Regional
Processing) package of legislation’
-The following pressure groups made submissions to the committee include:
-Global Human Rights Clinic
-St Vincent de Paul Society
-Law Institute of Victoria
-Refugee and Immigration Legal Centre Inc
-Illustrates a contemporary example of pressure groups attempting to influence the Migration
Act 1958

45
Direct Action- Is the taking of some form of action such as street marches
-Direct Action is inexpensive and can if successful encourage media coverage
-Ensures publicity and may increase the sensitivity of government
-Often used by Outsider or cause groups
eg. In April 2014 a small number of Christian protestors occupied the Subiaco offices of
Foreign Minister, Julie Bishop
-They belonged to the #LoveMakesaWay movement which oppose the detention of children
in Australia’s offshore detention centres
eg. Lock the Gate Alliance is an example of an outsider/cause group taking direct action
against the practice of fracking-the hydraulic fracturing of rocks deep underground to release
gas.
-Used a combination of picketing, social media and other forms of direct action
-Members of the groups obstruct mining exploration on farming properties
Court action- Increasing pressure groups of all types are taking legal action to argue the
interpretation of statutes, challenge executive decision or to create new precedents.
-Court action is expensive Usually insider or sectional groups
Insider or cause groups may be able to through crowd funding

t
en
eg. The Mackay Conservation Group, an outsider/cause group made up of local residents of
Mackay in Queensland, able to halt the development of the $16 billion Adani Carmichael
m
coal project by challenging the Environment Minister’s approval of the mine in the Federal
Court.
cu
Advertising- Using media to communicate with the public is a common strategy used by
Do

pressure groups.
eg. Minerals Council of Australia ran a $20 million television an media campaign against the
Resources Super Profits Tax, planned by the Gillard Government and replaced with a much
p

less effective Mineral Resources Rent Tax.

wa

Online Campaign- Social media, e-activism and hashtag campaigning has become a
prominent feature of modern pressure group activity
ks

-The internet has levelled the playing field to some extent by providing an avenue for even
the smallest and most resource poor pressure groups access to potentially huge audiences.
in

eg. Get Up.org is an online only petitioning pressure group with an online membership of
Th

over one million supporters

-Wages campaigns on a large number of issues by obtaining electronic signatures from
citizens and then presenting the petitions to Members of Parliament
-Get Up successfully challenged the Commonwealth Electoral Act in the High Court
-The law, amended by John Howard, closed the electoral rolls on the day that writs
for an election were issues, effectively disenfranchising voters who were not enrolled
by this date
-Led to 100,000 citizens being able to vote in the 2010 Federal Election.
Celebrities- The use of a prominent person is an effective wat to communicate a message.
eg. Cate Blanchett has given her name and support to the Australian Conservation
Foundation and was an active voice against the scrapping of the Carbon tax.

46
Pressure Groups distorting the legal system
-Under Gillard’s minority government she engaged in a lobbying deal with the pressure
groups Clubs Australia which caused her to back away from anti-gambling laws. However,
the Labor party has since flipped on this policy with Labor representative Julie Collins now
speaking of legislation which will see gambling ads being phased out. This demonstrates how
a pressure group with financial influence can distort party policy and thus legislation that
passes through parliament.
-The Australian Christian Lobby is one of the largest voices speaking against marriage
equality.
-According to Vote Compass only 33% of Australians are against gay marriage.
Therefor the Australian Christian Lobby represents a powerful minority.
-Marrion Maddox a Professor of Religion and Politics says that the Australian Christian
Lobby has achieved “remarkable influence with political leaders on both sides.”
-Which some have suggested may be the cause of the current political inactivity surrounding
the issue.

t
en
m
cu
Do
p
wa
ks
in
Th

47
US and Australia
Australia United States Comments
Constitutional Democratic Republic -Both are liberal
Constitution
Monarchy democracies
-Written Constitution -Written Constitution characterised by
defining the structure defining the constitutionalism, the
of government and structures and rule of law and the
division of federal procedures of separation of powers
powers government and
division of federal
-Unwritten powers
‘conventions’
governing the
practices of the
Type of Government

executive arm in the

t
en
particular
Monarch- A President- A directly -The other major
m
Head of State

hereditary office. elected office. Serves influence was the UK

Serves for life. a maximum of two 4 which is the source of
cu
Represented by a year terms. constitutional
Do

Governor-General parliamentary
appointed for 5 government.
years.
p
wa

Prime Minister- An
Head of Gov

indirectly elected
ks

office
in
Th

Federation- Sovereignty divided between -Federalism is a US

Federalism

one central and regional governments. (6 in innovation that was

Australia, 50 in the USA) adopted by Australia

48
 -Responsible -Executive -The greatest

Executive
Parliamentary Presidential difference between the
Government Government Australian and US
systems is the form of
-Drawn from and -Directly elected the executive arm of
accountable to the President and Vice government.
Parliament President.
-The President is
-The executive -The executive directly elected, the
Government is Administration is Prime Minister is
Cabinet Cabinet chosen by the party
that has the most
-Cabinet is composed -Cabinet is composed House of
of ministers who of Secretaries Representatives seats.
must be Members of appointed by and

t
en
and responsible to accountable to the -There is a distinct
Parliament President and who separation of
m
must not be Members legislative and
Separation of Powers

-The party able to of Congress. executive branches in

cu
command a majority the US system and a
Do

of support in the fusion in the

House of Australian system,
Representatives inherited from the UK.
p

forms government.
wa

-The Government is
ks

indirectly elected.
-Bicameral legislature with a House of -The structure and
in
Legislative

Representatives as a ‘peoples house’ and a function of the two

Th

Senate as a ‘States’ house’ countries’ legislatures

are almost identical
-The people directly elect both Houses. except that the
Australian Parliament
-Each House has co-equal powers (strong contains the executive
bicameralism) and the US Congress
does not

-The Australian Senate

is modelled on the US
Senate
-An independent judiciary comprising a -The High Court of
Judicial

constitutional court at the apex of the Australia is very

hierarchy that acts as a check on the powers closely to the modelled
of both the legislature and the executive. on the US Supreme
Court.

49
Legislative
Australia
Powerful
-Legislative arm holds parliamentary sovereignty as they are they only democratically elected
arm of government and thus hold immense power.
-The Legislative power is the power to make statute laws.
-S1 creates a bicameral Commonwealth Parliament composed of a House of Representatives,
a senate and the Queen
-The two houses have equal powers excepts for money laws as specified in S53
-Statute laws are universal and powerful instruments for social control and they need to
reflect the will of the people in a democracy. This is achieved by having the two houses of
the Commonwealth Parliament ‘directly chosen by the people’ as specified in S7 and S24.
-Westminster convention of responsibility requires that the executive arm be drawn from the
legislative
eg. The Tony Abbott leadership challenge was a result of concerns raised by backbench
members such as Dennis Jenson.
eg. Potato Marketing Corporation of Western Australia v Galati (2015), this decision made

t
en
by the WA Supreme court which served an injunction against Tony Galati was reversed after
the WA State Parliament introduced the Marketing of Potatoes Amendment and Repeal Bill
2016 m
cu
Limited
-Decline of Parliament thesis Executive dominance
Do

eg. 2015 Opposition Leader Bill Shorten and Deputy Opposition Leader Tanya
Plibersek co-sponsored a Private Member’s Bill called the Marriage Amendment
(Marriage Equality) Bill 2015 to legislate for marriage equality. The Government
p

used its numbers and voted to adjourned debate on the Bill indefinitely, preventing
wa

the Bill continuing through the House.

-The High Court
ks

eg. Roach v EC
in

-In 2006 the Commonwealth Electoral Act 1919 was amended to include s93(8AA)
which disqualified all prisoners from voting to the federal parliament.
Th

-The high court judged that this amendment infringed upon the meaning of s7 and s24
“directly chosen by the people” which has evolved to mean universal adult suffrage
-While the Parliament does have the power to withhold voting rights of certain
citizens this disqualification can only be made for a substantial reason
-“Serious offending represents such a form of civic irresponsibility that it is
appropriate for Parliament to mark such behaviour as anti social and … form of loss
of a political right.”-Judgement of the High Court
-The Amendments were struck down and the previous statute restored.

50
United States
Powerful
-Article II Section 4 allows for impeachment of a President
-Article I Section 1 grants legislative powers to the Congress
-Article II Section 2 Clause 2 outlines that the President alone may nominate supreme
court justices but the Congress must approve of this.
eg. In 1998 and 1868 the Congress impeached Presidents Bill Clinton and Andrew
Johnson. Later they were both acquitted by the Senate, thus not resulting in removal
from office. President Nixon also came close to impeachment but his term ended
before claims were carried through.
eg. Donald Trump’s nomination Neil Gorsuch in late January of 2017, required the
approval of the Congress before he was able to appoint him.
Limited
-Article I Section 7 Clause 3 outlines the power of the President to veto legislation
eg. In 2015 President Obama vetoed the Keystone XL Pipeline Approval Act
-Executive impinging on the Legislative
eg. In 2015 the Supreme Court ruled in Obergefell v Hodges (2015) that state-level

t
en
bans on same-sex marriage are unconstitutional. Thus limiting the states ability to
legislate in this regard.
-Judiciary impinging on the Legislative m
cu
Executive
Do

Australia
-Australian system of governance allows for a higher accountability than the US as the leader
p

of a party is not directly elected and therefor Australia pertains the ability to re-elect a leader
wa

whenever they are no longer serving the needs of the nation.

-S64 of the constitution states that “no Minister of State shall hold office for a longer period
than 3 months unless he is or becomes a senator or member of the House of Representatives.”
ks

-S67 of the constitution states that “the appointment and removal of all other officers of the
in

Executive Government of the Commonwealth shall be vested in the Governor General in

Th

Council.” However in reality the Governor General acts on the advice of the Prime
Minister
-S61 “The executive power of the Commonwealth is vested in the Queen and is exercisable
by the Governor-General”
-Chapter 1 Part 1 states that “A Governor-General appointed by the Queen shall be Her
Majesty’s representative in the Commonwealth”
-Queen is not directly elected and achieve power through hereditary means
-Leadership spills; Julia Gillard, Kevin Rudd, Tony Abbott, Malcolm Turnbull
eg. After the reinstatement of the Knights and Dames and the Knighting of Prince Philip a
highly unpopular move, Tony Abbott’s approval ratings dropped to 38% according to
Essential vision and he was later deposed by Malcolm Turnbull the following month on the
14th of September

51
United States
-However, the US system also has some claims to accountability as the President is directly
elected by the people
-Article II Section 1: “The executive Power shall be vested in a President of the United States
of America.”
President is elected by the people via the electoral college system as stated in Article II
Section 1 of the Constitution
-Ineligibility Clause Article 1 Section 6 Clause 2 “No Senator or Representative shall, during
the Time for which he was elected, be appointed to any civil Office under the Authority of
the United States.”
-Article II Section 2 “he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint public Ministers… and other Officers of the United States”
-Donald Trump has historically low approval ratings averaging at a 41% approval rating, but
the American people lack the ability to depose the President due to strict and time consuming
impeachment laws. That are outlined in Article II Section 4.
-Unfortunately, several recent Presidents have suffered second- term failures,
suggesting that diminished political accountability has its hazards for both the

t
en
incumbent and the nation. A system of responsible government such as Australia’s
does not encounter this hazard of an untethered executive. (Harold H Bruff, The
m
President and Congress, p.214, Adelaide Law Review, 2014, Scholarly Article)
eg. In history there has only ever been two impeachments of president, Andrew Johnson in
cu
1968 and Bill Clinton in 1998 both of which were shut down by the Senate and never resulted
Do

in removal from office

eg. The Supreme Court ruled in a 6-2 decision to limit the president’s power to fill agency
vacancies on a temporary basis while nominees go through the official and sometimes
p

beleaguered confirmation process

wa
ks
in
Th

52
Judicial
-Judicial power is the power to adjudicate and to make legally binding decisions.
Similarities
High court has interpretation powers
S76 Australian constitution
eg. Williams No2
-Proved the unconstitutionality of the federal parliaments use of Section 51 (xxiiiA)
the ‘benefits to students’ power to fund that National Chaplaincy Program
The case of Chief Justice John Marshall in Marbury v Madison (1803) asserted that
it was the Supreme Court’s responsibility to overturn unconstitutional legislation.
eg. In 2015, the US Supreme Court ruled in a 5-4 vote that the Constitution’s
guarantees of due process and equal protection under the law mean that states
cannot ban same-sex marriage
Court Hierarchy
S74 Australian Constitution
Article III Section 1 American Constitution
Removal and terms of High Court Justices

t
en
-Lifetime
Article III Section 1
m
Section 72 only governor general in council has the power to remove a high court
cu
justice but this has never occurred.
Differences
Do

Nomination of High Court Justices

United States
-Political event as it requires the consultation of Congress before appointment, nominated by
p

the President. There is large debate surrounding the bias of Judges in the media, such is the
wa

case with Trumps pick Neil Gorsuch.

Australia
ks

-The appointment of High Court Justices is a highly non-political event requiring only the
in

Attorney general to consult with his or her state counterparts before naming somebody to the
High Court as outlined in the High Court of Australia Act 1979
Th

US Constitution
Article 1
Vests legislative power in the Congress of the United States, consisting of the Senate and the
House of Representatives. It contains the following sections:
Section 1- Vests legislative powers in a Congressing consisting of a Senate and a House of
Representatives
Section 2- The House of Representatives
Section 3- The Senate
Section 4- Elections for both houses
Section 5- The procedures of each house.
Section 6- Payment and limitations of Members of Congress
Section 7- Passing of bills
Section 8- Powers of the Congress
Section 9 and 10- States and other matters

53
Article 2
-Vests the executive power in a President and a Vice President who are always elected
together.
-Article 2 also establishes the Electoral College- the voting system for electing a President
and Vice President.

Article 3
-Vests the judicial power in the Supreme Court and
-Allows the Congress to create other inferior courts
-Establishes the independence of the judiciary
-Establishes the original and appellate jurisdiction to interpret the Constitution

Article 1: Legislative Power

-The US Congress is the legislative body within the American federation, created by Article 1
of the Constitution
-Bicameral legislature with a House of Representatives and a Senate, both directly elected by

t
the people

en
-Each house has different functions but has more or less the same law making powers
-Law making powers of Congress are limited by their Constitution, shares sovereignty with
50 states in a federation m
cu
-Law making powers are specified and enumerated in their Constitution, especially under
Article 1 Section 8
Do

Article 2: Executive Power

p

-In the US government the Head of State and the Head of Government is the President of the
wa

United States, a single office that is directly elected by the people

-Executive presidency established by Article 2 of the US Constitution
ks

-The executive arm is completely separated from the other two arms of government
-The people directly elect their executive government every 4 years using the electoral
in

system
Th

-The President and Vice President are elected together and then appoint a Cabinet of
Secretaries who each head departments and agencies in the US Administration
-Secretaries are appointed and accountable to the President

Article 3: Judicial Power

-The US judicial power is vested in a Supreme Court and other inferior courts that the
Congress may create
-Article 3 was the model for Chapter 3 of the Australian Constitution
-US judiciary is entirely separate and independent from the other two arms of government
-Supreme Court has power to interpret the Constitution and to strike down laws that it judges
are unconstitutional
-It may also adjudicate on matters arising from the President’s powers.
eg. The Supreme Court ruled in a 6-2 decision to limit the president’s power to fill agency
vacancies on a temporary basis while nominees go through the official and sometimes
beleaguered confirmation process
-The Supreme Court is a powerful check on the legislative and executive

54
High Court

The Purpose of Chapter 3

-Creates the federal judiciary and vests the judicial power of the Commonwealth in a High
Court.
-It specifies an exclusive power for the Parliament allowing to create new federal courts. This
permits the Parliament to create a federal court hierarchy.
-Establishes the independence of the judiciary by protecting it from the other arms of
government
-Defines judicial powers- called jurisdictions
-Provides constitutional protection for one of the few ‘rights’ actually specified in the
Constitution- a right by trial by Jury
eg. Section 80 of the Constitution entrenches a right to trial by jury for federal indictable
offences.

Judicial Authority

t
en
Sources of authority:
-The Constitution
m
-The Judiciary Act 1903- the statute which sets out the legal framework for the courts
-The common law, a large body of precedent which guides the exercise of contemporary
cu
judicial power
Do

-Long established norms and maxims that govern how judicial decisions are made
eg. State decisis: Stand by what has been said, principles of natural justice and the rules of
statutory interpretation.
p

-Accountability through appeals

wa

-Tradition and heritage- the judiciary has a long and unbroken history of seeking justice. It
has created fundamental principles, such as habeas corpus, and developed common law legal
ks

rights protections, like the right to silence and the presumption of innocence, over the
centuries. This is the heritage of the modern judiciary.
in
Th

-The authority of the courts is always subject to that of the parliament- judicial power in
inferior to legal power
-Democratic Parliament may override the courts in almost all matters, the only exception is
Constitutional interpretation
-Preserves parliamentary sovereignty

55
Judicial Power
Judicial Power- The power to determine ‘rights and duties by applying and interpreting
law…’
-Judicial power is final, unless appealed to a higher court whose decision will then be
absolutely final
-A court decision is law and is legally binding on the parties to the case
Creating a federal judiciary- Section 71
-Creates the High Court of Australia
-Allows for the creation of a federal court hierarchy
-Permits cross-vesting of judicial power
Created the High Court of Australia
-Section 71 vests the judicial power of the Commonwealth in a ‘Federal Supreme Court’ and
says that it shall be called the ‘High Court of Australia.’
Allows for other federal courts
-Section 71 specifies that the Parliament shall have the power to create ‘other federal courts’
-Gives exclusive power to the Parliament to legislate for new federal courts

t
-‘Cross vesting’ allowed most federal matters to be adjudicated by State and Territory courts

en
using federal jurisdiction ‘invested’ in them.
eg. In 1930 the Federal Court of Bankruptcy was created, followed in 1956 by the Australian
Industrial Court
m
cu
eg. The Family Law Act 1975 created the federal Family court of Australia a court with
‘specialised jurisdiction’ in family.
Do

-All states have referred their family law powers to the Commonwealth except for WA.
eg. The increasing workload of the High Court led to the passing of the Federal Court of
p

Australia Act 1976 creating the first federal court with ‘general federal jurisdiction’
wa

-Allowing it to relieve the case load of the High Court

eg. Commonwealth Parliament passed the Federal Magistrates Act 1999 creating the Federal
ks

Magistrates Court
-Inferior court
in

-Redefined as an intermediate court when it was renamed the Federal Circuit Court of
Th

Australia in 2013
-Commonwealth Parliament has created additional federal courts under S71 due to increasing
workloads in the 1970s.
Permits Cross Vesting
-Section 71 allows the Parliament to ‘invest’ other courts with federal jurisdiction
-Granting State and Territory courts the power to adjudicate in cases involving federal laws,
known as Cross Vesting
-State court may therefore exercise federal jurisdiction reducing the need to establish a
separate and costly federal court hierarchy in each State and Territory
eg. The Jurisdiction of Court (Cross-Vesting) Act 1987 is an example of legislation passed by
the Commonwealth Parliament to ‘invest’ State courts with federal jurisdiction.
-Cross Vesting is designed to reduce these inconveniences and costs.
-Cross vesting was heavily relied upon by the Commonwealth until the 1970s when it began
creating its own federal courts

56
The High Court interprets and strictly defines Section 71 ‘judicial power’
-There have been occasions when the High Court itself has interpreted its own and other
Chapter 3 courts’ judicial powers
-Required to adjudicate the meaning of S71
-This has ensured that only the High Court and other Federal Courts created by the
Commonwealth Parliament can exercise judicial power to the exclusion of all bodies
eg. Boilermakers Case (R V Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94
CLR 254)
-Involved a dispute over the powers of the Commonwealth Court of Conciliation and
Arbitration
-The Constitution (Section 51 (xxxv) limits the Commonwealth to ‘arbitration and
conciliation’ as the methods by which to resolve industrial disputes which involve more than
one State- it does not permit ‘adjudication’
-The Commonwealth Parliament established the Commonwealth Court of Conciliation and
Arbitration under S71 to decide and (adjudicate) industrial disputes
-In a decision which:
a) Strictly separated the judicial power from other powers

t
en
b) Narrowly defined ‘judicial power’ the High Court ruled that the Commonwealth
Court of Conciliation and Arbitration could not exercise both an ‘arbitration’ power
m
(interpreted as an executive power) and a ‘judicial power’
eg. Brandy’s Case (Brandy v Human Rights and Equal Opportunity Commission (1995)
cu
-Involved a dispute concerning the powers of the Human Rights and Equal Opportunity
Do

Commission
-Mr Brandy has had an order made against him by the HREOC
-The HREOC not being a court could not enforce its decision but the Act under which it
p

operated allowed its decisions to be registered in the Federal Court and thus made
wa

enforceable
-Mr Brandy argued that the HREOC had judicial power while not being a ‘Chapter 3 court’.
ks

The High Court Agreed

Gaining judicial independence- Section 72
in

-The separation of powers is a key principle of any democracy.

Th

-The executive appoints, but only the Parliament may remove judges on the grounds
of ‘proven misconduct or incapacity.’
-The executive cannot reduce judges’ pay
-These two elements of S72 ensures the involvement of the two other branches of
government in the appointment and removal of judges
-The power to remove a judge is deliberately separated from the ‘real’ executive because the
government is often a party to cases.
-The Parliaments power to remove judges is conditional- it must only be on grounds of
‘proven misconduct or incapacity’
-The vagueness of these words is deliberate- it makes it hard to sack a judge
-No federal judge has ever been removed by Parliament using this power
eg. S72 was changed by referendum in 1977
-Made it compulsory for judges to retire by the age of 70 years.

57
Jurisdictions of the High Court
-Refers to the areas where a court can adjudicate
-Means ‘where the law speaks’
-Courts have the authority to adjudicate the law
-Courts are restricted in terms of which cases they may hear
-The allocation of jurisdiction is based on a court’s position in the court hierarchy
-Inferior courts may only adjudicate simple (summary) matters while intermediate and
superior courts may hear more serious cases
Types of Jurisdiction
Appellate Jurisdiction- Refers to the power of a court to review the decisions of lower courts
-Applies to certain areas of law and to certain courts
-Only those at the intermediate and superior levels in the court hierarchy have appellate
jurisdiction
-Only courts with appellate jurisdiction may create common law precedents
Original Jurisdiction- Refers to the power of a court to hear cases in the ‘court of first
instance’
-Cases may be heard for the first time in a particular court

t
en
-In the first hearing of a case the court will apply the law and consider the facts (the
evidence) when adjudicating, reach a decision, and that decision will become law
m
-Decisions if made in higher courts may become precedents.
cu
-If one both of the parties to a case is dissatisfied with the judgement they may appeal the
decision
Do

-Must appeal to a court that is vested with appellate jurisdiction

High Court has both original and appellate jurisdiction
The High Court’s appellate jurisdiction- Section 73
p
wa

-The Constitution grants and defines the appellate jurisdiction of the High Court in S73
-It grants power to hear appeals on all civil and criminal matters arising from lower courts
throughout all State and Territory hierarchies and the federal hierarchy
ks

-May also hear appeals from cases heard by a single judge of the High Court itself
in

-S73 also grants Parliament the power to determine which appeals the High Court may hear
Th

eg. S35A of the Judiciary Act 1903 sets out the circumstances under which a so-called
Special Leave to Appeal may be granted
-Designed to control the case load of the High Court by giving it power to decide if it will
hear an appeal
-There is no automatic right to appeal to the High Court
-The High Court will only grant Special Leave to Appeal is there appears to be:
-A miscarriage of justice
-A question of law which may create new common law
-Conflict between courts
-If the High Court rejects an application for Special Leave to Appeal the case ends and the
decision stands
-The High Court is a final court of appeal

58
The High Court emerges as the final court of appeal- Section 74
-The High Court’s decisions on appeals are absolutely final and cannot be appealed further
eg. S74 of the Constitution once permitted appeals from Australian courts to Britain’s Privy
Council, the highest court of the former British Empire and the contemporary
Commonwealth of Nations. Beginning in 1968 the Commonwealth Parliamentary
progressively limited appeals from Australian courts to the Privy Council.
-Appeals to the Privy Council were ended by the passage of the Privy Council (Appeals from
the High Court) Act 1975
-S74 has since become a ‘dead letter’ section of the Constitution
High Court’s original jurisdiction- Section 75 and 76
Section 75- Grants the High Court original jurisdiction and includes matters concerning
treaties with other countries or international organisations such as the United Nations or as
parties
-Cases between different governments of the Australian federation are called inter se cases.
-S75 grants the High Court jurisdiction to adjudicate writs of Mandamus, prohibitions or
injunctions
-The three most significant remedies that can be made by a court when a party

t
en
believes the government is acting unlawfully
-Mandamus is a remedy that can compel a specific government official to do
something. m
cu
-Prohibitions and injunctions are remedies that can prevent a government from doing
something
Do

Strong checks on the executive power.

Section 76- Allows the Parliament to grant additional jurisdiction to the High Court besides
that already granted under S75.
p

-Permits some flexibility for the power of the High Court to be amended by the Parliament as
wa

it sees fit and as circumstances change

-The High Court’s well known original jurisdiction in constitutional cases is granted by
ks

Parliament under S76

in
Th

59
Roles of the High Court
-Determining constitutional cases
-Hearing appeals
Constitutional Cases
-Unwritten part of the Australian constitutional system, the Westminster convention and non-
justiciable meaning that they are not able to be adjudicated by the court, precisely because
they are not written.
-The constitution is capable of mote than one interpretation no matter how precisely the
original document was constructed
-The constitution is a written legal document it is justiciable by a court- a court with
constitutional jurisdiction
-Three fields of interpretation provides examples of how the High Court interprets the
Constitution:
-Interpretations which define legislative powers
-Interpretations which define executive powers
-Interpretations which discover implications (unspecified inferences) within the
Constitution

t
en
Defining the constitutional scope and limits of legislative and financial power
-The High Court’s judgements in landmark cases may alter the way the Constitution operated
m
by declaring the meaning of words or sections- even though it cannot alter the words
cu
themselves
-The Constitution allocated legislative and financial powers between the two sovereign levels
Do

of government within the federation- the Commonwealth and the States. Interpretations of
any of these may alter the federal balance of power between them. Powers are either:
-Exclusive: exercisable only by the Commonwealth
p

-Concurrent: exercisable by both State and Commonwealth governments

wa

-Residual: exercisable by States alone.

-Exclusive and concurrent powers are specified therefore capable of adjudication.
ks

-Residual powers are unspecified and are therefore non-justiciable

in

-Many cases involve disputes about the scope and extent of legislative and/or financial
powers.
Th

-The rule of law dictates that the Commonwealth Parliament may only enact legislation under
‘heads of power’ enumerated within the Constitution.
Legislative and financial power defined
Williams v Commonwealth of Australia (2014)
-The Commonwealth sought to fund the National Schools Chaplaincy Program by bypassing
the states and paying service providers and schools directly.
-Ronald William’s second case was against the constitutionality of using section 51 (xxiiiA),
to pay for chaplains in schools.
-The High Court found that the payments were not “benefits to students” according to the
legal maxim Ejusdem generis which is a rule of interpretation that takes into account the
surrounding wording to interpret a law.
-The High Court used its interpretation power to strike down the Amendment made by the
government to the Financial Management and Accountability Act 1997 and found that
benefits under S51(xxiiiA) must be paid directly to the beneficiary
-S76 allows for the court to make interpretations of the constitution
The High Court can only act after the fact
-All courts may only make these judgements if a case is brought to the Court.
-May only act ex post facto

60
-The Commonwealth Parliament’s laws may only be struck down if they are challenged
before the Court
Determining constitutional scope and limits of executive power
-Executive government implements legislative and may make limited law under legislative
power delegated to it under regulations and ordinances (delegated legislation) by the
Parliament
eg. S61 of the Australian Constitution vests the executive power of the Commonwealth in the
Queen and makes it exercisable by the Governor General so that the executive branch may
carry out the ‘execution and maintenance of the Constitution and the laws of the
Commonwealth.’
-Under common law the Australian executive exercises certain prerogatives of the Crown
eg. Power to sign treaties and declare war
-Tony Abbott used executive prerogative to order military action in order to extend the
RAAF’s anti-ISIS bombing campaign from Iraq into Syria in 2015 without parliamentary
debate or approval
-S61 does not limit the executive to the same ‘heads of power’ that is defines for the
Commonwealth Parliament, its powers may be limited by statutes passed by Parliament and

t
en
by High Court interpretations of S61
eg. Williams (No.1)
m
-In this case Williams challenged the power of the federal government to make payments to
Scripture Union Queensland to fund chaplains in schools.
cu
-This policy was implemented under Section 61, the executive power, and not by an Act of
Do

Parliament.
-It was therefore a government policy enacted by prerogative, which Williams challenged and
was not an Act of Parliament.
p

- A majority of the High Court held that, in the absence of statutory authority, S61 did not
wa

empower the Commonwealth to enter into the Funding Agreement or to make the challenged
-The court held that the Commonwealth’s executive power does not include a power to do
ks

what the Commonwealth Parliament could authorise

-S44 of the Financial Management and Accountability Act 1997 did not provide the
in

Commonwealth with the necessary statutory authorisation to enter into the Funding
Th

Agreement or to make payments to SUQ under that agreement

Discovery of ‘implications’ contained within the Constitution
-Inferred from the wording of the Constitution
Implied immunities and prohibitions- These implications helped preserve the power of the
States, whose powers are residual and therefore non-justiciable
Implied right to vote- S7 and S24 both expressly state the Senate and the House of
Representatives shall be directly ‘chosen by the people’
-According to the High Court this phrase implies that the Constitution contains an implied
right to vote

61
Implied right to political communication- Drawn from the democratic nature of the
Constitution.
-S7 and S24 it follows that there should be political communication and debate of the
arguments concerning the policies of the parties contesting the election.
eg. 2016 general election there was much debate about the Coalition’s company tax cuts,
Labor’s proposal to change negative gearing laws and general debate about marriage
equality.

Common Law Cases

-S73 grants the High Court its power to hear appeals from all Federal, State and Territory
courts and bodies exercising judicial power.
-An appeal occurs when a party to a case decided by a lower court wishes to have the
judgement tested or reviewed by a court with appellate jurisdiction.
-Common law is created by appellate courts
-The High Court is the ultimate appellate court. It may create common law when:
-Reverses a case on appeal
-Interprets statute law in new ways and declares the law

t
en
-Overrules existing precedent
Norrie: The Creation of a third sex
m
-November 2009 sought to be registered under the Births, Deaths and Marriages Registration
cu
Act 1995 as of non-specific sex
-Initially approved but this approval was retracted
Do

-Norrie appealed the decision to the NSW Administrative Decisions Tribunal

-The Tribunal rejected the appeal, ruling that the Registrar must apply the act as written
-The Court of Appeal found in favour of Norrie and declared that Norrie could be assigned to
p

a category of sex other than male or female

wa

-The NSW Registrar of Births, Deaths and Marriages then appealed this decision to the High
Court against the court of appeals decision
ks

-The High Court made a unanimous decision that the Act does in fact, only allow for male
in

and female sexes. However, the binary classification (male OR female) does not have to
apply to everyone
Th

-The court said that the job of the registrar is to record information provided by members of
the public, not to decide moral or social judgements
-The High Court noted that to meet Norrie’s request to be registered as ‘non-specific’ sex,
would be no more than to recognise, as the Act does, that not everyone is male or female.
-The effect of the High Courts judgement in NSW Registrar of Births, Deaths and Marriages
v Norrie 2014 was to create a new common law category of sex.

62
Independent Commission Against Corruption v Cunneen (2015)
-NSW Crown Prosecutor Margaret Cunneen found herself about to face the Independent
Commission Against Corruption
-It was alleged that Ms Cunneen encouraged her sons’ friend to fake chest pains in order to
avoid a breath test
-Cunneen argued that it was beyond ICAC’s power to investigate her for corrupt conduct
-This was the High Court’s first time ruling on the definition of ‘corrupt conduct’ under the
Independent Commission Against Corruption Act 1988 (NSW)
-According to the High Court the meaning of ‘adversely affect’ in the definition of Corrupt
Conduct meant to cover the conduct which affects the probity of the exercise by a public
official of their functions.
-It was not sufficient to simply establish that the conduct could give rise to a reduction in the
effectiveness or efficacy in the exercise of the relevant official function
-Cunneen’s actions would only constitute as corrupt conduct if she had done something to
affect the police officer’s probity
-Cunneen won the case and as a result led to a narrower definition of corrupt conduct
-As Common law the Cunneen precedent was short lived

t
en
-ICAC feared that this loss would undermine some of its past investigations and limit its
future powers
m
-Asked the NSW government to amend the Independent Commission Against Corruption Act
1988 to include the ‘wider’ meaning
cu
-The NSW government has done so and thus the Cunneen case has resulted in parliamentary
Do

action against a High Court Case

Factors affecting the roles and power of the High Court

p

How Judges Decide Cases

wa

-Judges apply to factors when deciding cases; the facts and the law.
-However there is a third factor which can be decisive in a case; the judges discretion.
ks

-This is an unavoidable factor because courts are human institutions and judges are human
in

beings
Th

The Freedom of Judges to use discretion

Judicial Discretion- The freedom of a judge to use his or her own experience and
understanding to interpret statutes and precedents.
Legalism and literalism
Literalism- The actual words of the law and their plain English meanings are used with
minimal consideration of outside sources.
Legalism- The strict use of customary and traditional legal rules and maxims of interpretation
are applied.
-The narrow legal aspects of the case are examined without consideration of broader
community issues or evolving social cultural norms
Activism
-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.

63
High Court Cases
Commonwealth v Tasmania (1983): Tasmanian Dams
Related Areas:
• Increasing Commonwealth Legislative Power
• Federalism
• Constitutional interpretation
-The Tasmanian dams case considered some difficult questions about several important
provisions of the Australian Constitution.
-Central among these was the interpretation of Section 51(xxix) the external affairs
power
-Section 51 (xxix) empower the Parliament to make laws in respect to external affairs
-The Commonwealth signed the International Convention for the Protection of the World’s
Cultural and Natural Heritage
-The government listed the Gordon-below-Franklin River, making it unlawful for the
Tasmanian government to dam this river
-It is now firmly established that under S51 (xxix) the Australian Government has the power

t
to enact legislation that is reasonably capable of being considered appropriate and adapted to

en
fulfil Australia’s international legal obligations.

Western Australia v Commonwealth (1995): Native Title

m
cu
Related Areas:
Do

• Disputes between governments

• Constitutional Interpretation
• Legislative Power of the Commonwealth
p

-The Native Title Act 1993 was passed to set up a process for Indigenous peoples to make
wa

native title claims.

-Before the NTA was passed however the WA Government passed its own native title law
ks

-The Land (Titles and Traditional Usage) Act 1993

in

-Purported to extinguish native title in WA and replace it with ‘rights of traditional usage’
which would be a form of statutory title
Th

-When the NTA passed WA challenged its constitutional validity in the High Court
-The High Court found that the Native Title act was a valid exercise of the Commonwealth’s
power to make special laws with respect to the persons of any race (the ‘race power’) with
the exception of just one section.
-This case ensured the survival of Native Title Act

64
McCloy v New South Wales (2015)
Related Areas:
• Implied freedom of political communication
-Upheld the validity of laws capping and in some cases banning political donations in
relations to NSW elections.
-The Laws had been challenged on the ground that they breached the implied freedom of
political communication
-The Court accepted that there was a burden on the freedom it was held to be for a legitimate
end and proportional in nature
-The cap on donations was unanimously upheld while the ban on donations by property
developers was upheld by 6 justices

Roach v Electoral Commissioner (2007)

Related Areas:
• Limiting the Legislative arm
• Implied right to vote

t
-In 2006 the Commonwealth Electoral Act 1919 was amended to include s93(8AA) which

en
disqualified all prisoners from voting to the federal parliament.
-The high court judged that this amendment infringed upon the meaning of s7 and s24
m
“directly chosen by the people” which has evolved to mean universal adult suffrage
cu
-While the Parliament does have the power to withhold voting rights of certain citizens this
disqualification can only be made for a substantial reason
Do

-“Serious offending represents such a form of civic irresponsibility that it is appropriate for
Parliament to mark such behaviour as anti social and … form of loss of a political right.”-
p

Judgement of the High Court

wa

-The Amendments were struck down and the previous statute restored.
ks

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)- Engineers Case

Related Areas:
in

• Constitutional Interpretation
Th

• Commonwealth’s legislative ability

• Federalism
-Trade union was involved in an industrial dispute with a sawmilling factory owned by the
WA government.
-The Commonwealth sought to legislate under power given by Section 51(xxxv), the
industrial relations power, to make a law for State Businesses when a dispute crossed state
borders
-In this case the workers belonged to the Amalgamated Society of Engineers a national
institution thus the dispute extended beyond the WA border
-The High Court agreed giving a much broader interpretation to Section 51(xxxv)
-Reversed the precedent of the Railway Servants Case

65
South Australia v Commonwealth (“First Uniform Tax case”) 1942
Related Areas:
• Constitutional Interpretation
• Disputes between governments
• Commonwealth Financial power
• Federalism
-During the Second World War Australia came close to invasion by Japanese forces
-The Commonwealth required greater capacity to fight the war and passed four pieces of
legislations
-Income Tax Act 1942: Established a federal income tax.
-States Grants Act 1942: Made grants to each state equal to the income tax a State
raised itself
-Income Tax Assessment Act 1942: Amended to force taxpayers to pat their federal
income tax before any State income tax
-Income Tax (Wartime Arrangements) Act 1942: Required the states to transfer all
their income stall, all offices, furniture and official tax records to the

t
Commonwealth.

en
-The effect of these acts was a commonwealth takeover of tax
-The states challenged the 4 acts in the High Court
-The High Court found the 4 acts to be constitutional
m
cu
-There was an additional challenge in 1957 after the conclusion of war and the acts remained
Do

in force
-Due to Section 51 (ii), Section 96 and Section 109
-After 1941 the states were effectively prevented from collecting income tax
p

-Income tax is one of the most important taxes contributing to 57% of all tax collected in
wa

Australia between 2013-2014.

-Before WWII the States were less reliant on grants under S.96 and the VFI was smaller
ks

-Since the Uniform tax case the VFI started to favour the government
in

Work Choices Case (NSW v Commonwealth (2006))

Th

Related Areas:
• Constitutional Interpretation
• Federalism
• Commonwealth Legislative ability
-Commonwealth Industrial relations law by the Howard Government
-Potentially couldn’t get through on S51(xxxv) The industrial relations power, therefor the
Howard Government went through S51 (xx).
- High Court Found that the Government could indeed legislate industrial relations relating to
incorporated bodies.

66
Australian Communist Party v The Commonwealth 1951
Related Areas:
• Commonwealth Legislative Powers
• Constitutional and Statute Interpretation
-19 October 1950 the Communist Party Dissolution Act 1950 was passed by the Australian
Parliament
-The act purported to dissolve the Communist Party and to confiscate all its property
-The High Court ruled that this legislation was invalid
-Claiming that the validity of a law cannot be made to depend on the opinion of the law-
maker

Independent Commission Against Corruption v Cunneen (2015)

Related Areas:
• Common Law
-NSW Crown Prosecutor Margaret Cunneen found herself about to face the Independent
Commission Against Corruption

t
-It was alleged that Ms Cunneen encouraged her sons’ friend to fake chest pains in order to

en
avoid a breath test
-Cunneen argued that it was beyond ICAC’s power to investigate her for corrupt conduct
m
-This was the High Court’s first time ruling on the definition of ‘corrupt conduct’ under the
cu
Independent Commission Against Corruption Act 1988 (NSW)
-According to the High Court the meaning of ‘adversely affect’ in the definition of Corrupt
Do

Conduct meant to cover the conduct which affects the probity of the exercise by a public
official of their functions.
p

-It was not sufficient to simply establish that the conduct could give rise to a reduction in the
wa

effectiveness or efficacy in the exercise of the relevant official function

-Cunneen’s actions would only constitute as corrupt conduct if she had done something to
ks

affect the police officer’s probity

-Cunneen won the case and as a result led to a narrower definition of corrupt conduct
in

-As Common law the Cunneen precedent was short lived

Th

-ICAC feared that this loss would undermine some of its past investigations and limit its
future powers
-Asked the NSW government to amend the Independent Commission Against Corruption Act
1988 to include the ‘wider’ meaning
-The NSW government has done so and thus the Cunneen case has resulted in parliamentary
action against a High Court Case

67
NSW Registrar of Births Deaths and Marriages v Norrie (2013)
Related Areas:
• Common Law
-Case began in 2010 when Norrie was the first person in NSW to be neither a man or a
woman in the eyes of the government with a formal “sex not specified” registration.
-4 months later the registry wrote to Norrie that the change had been issue in error
-Norrie first appealed the case to the Administrative Appeals Tribunal but the case was
dismissed
-Norrie then went to the NSW Court of Appeal where the three judge appeal panel
unanimously declared that “as a matter of construction … the word sex does not bear a binary
meaning of ‘male’ or ‘female’
-The NSW Registry of Births, Deaths and Marriages then appealed the matter to the high
court
-The court found that the provision of The Births, Deaths and Marriages Registration Act
1995 (NSW) does not require that people who, having undergone a sex affirmation
procedure, remain of indeterminate sex, that is, neither male nor female- must be registered,
inaccurately, as one or the other. The Act itself recognises that person may be other than male

t
en
or female and therefore may be taken to permit the registration sought, as ‘non-specific’

Williams v Commonwealth of Australia (2014) m

cu
Related Areas:
• Constitutional Interpretation
Do

• Executive Influence
-The Commonwealth sought to fund the National Schools Chaplaincy Program by bypassing
p

the states and paying service providers and schools directly.

wa

-Ronald William’s second case was against the constitutionality of using section 51 (xxiiiA),
to pay for chaplains in schools.
ks

-The High Court found that the payments were not “benefits to students” according to the
legal maxim Ejusdem generis which is a rule of interpretation that takes into account the
in

surrounding wording to interpret a law.

Th

-The High Court used its interpretation power to strike down the Amendment made by the
government to the Financial Management and Accountability Act 1997 and found that
benefits under S51(xxiiiA) must be paid directly to the beneficiary

68
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.

Types of Federation
Coercive Federalism- Describes a situation in which the central government is very powerful
and the regional government lack autonomy within their sphere of sovereignty.
-The central government uses legislative and financial powers to dictate policy to regional
governments and interfere in their areas of sovereignty
Coordinate Federalism- Describes a situation in which each level of government is more or
less autonomous within its own sphere of sovereignty.
-Little cooperation
-Little input or interference from the other levels
Cooperative federalism- Describes an even balance of power between central and regional
governments
-Neither is dominant

t
-Substantial cooperation between the levels

en
-Link the two levels of government and allow for joint decision making and action between
the levels of government.
m
cu
Exclusive Powers
Do

Exclusive powers belong only to the commonwealth.

-Written and enumerated in the constitution
-Few in numbers and found throughout the Constitution
p

Section 52- Power over the Commonwealth public service and site of the Commonwealth
wa

seat of power (ACT).

Section 90- Collecting Customs and Excise Taxes
ks

Excise: A type of tax imposed on manufactured goods. Excises were imposed by

some Australian colonies on the goods produced by others, creating barriers to inter-
in

colonial trade. The removal of such barriers to was one of the main reasons for the
Th

joining of colonies into one federal nation. To prevent the future States imposing anti-
trade taxes upon each other, excise was made an exclusive power of the
Commonwealth in S90. The word ‘excise’ has been subject to increasingly broad
interpretation by the High Court, effectively expanding the tax collection power of the
Commonwealth at the expense of the States and contributing to the VFI and the
emergence of fiscal federalism in Australia.
Section 114- Prohibits the States to raise any form of army or navy (therefore making an
army) or raising tax on federal property and/or vice versa
S51 (vi) (Defence)
Section 115- Does not allow the states to coin money
S51 (xii) (Currency and Coinage)

69
Concurrent Powers
Concurrent powers belong to both the states and the Commonwealth
-Written and enumerated in the constitution
-Concurrent powers exist because the word ‘exclusive’ is not present within Section 51 which
means that the states are not excluded from using the 40 powers listed
-All located in Section 51:
-The longest section in the constitution and contains 40 subsections specifying a range
of powers
eg. S51(ii) taxation- both powers raise tax under this head of power.
Some powers are exclusive in nature
Section 51 (vii)- “the naval and military defence of the Commonwealth”
This power is only used by the Commonwealth (S114)
Powers in Conflict
-Contradictory laws would breach the rule of law, which requires that everyone be able to
comply with the law; law is unambiguous.
Section 109- Where a Commonwealth and State conflict the Commonwealth law will prevail
but only “to the extent of the inconsistency.”

t
en
eg. Marriage Equality (Same Sex) Act 2013, Commonwealth v ACT (2013)

Residual Powers m
cu
-Residual powers belong to the States and are unspecified in the constitution
-Any government power that is not specified in the Constitution belongs to the states
Do

-Powers include:
-Primary and secondary education
-Health
p

-Roads and traffic rules

wa

-Public transport
-Railways
ks

-Mental Health
in

-Common feature is that they are services and public goods that government provide to
citizens
Th

-State governments are best placed to determine these as they are closer to the people they
govern
-The concept of residual powers also meant that the Founding Fathers did not have to
anticipate all the possible powers of government
Section 106- Saving of State Constitutions
Section 107- Saving of Power of State Parliaments
Section 108- Saving of State Laws
Section 113 -gives the states control over intoxicating liquids
eg. Lock out laws: Sydney government introduced the Liquor Amendment Bill 2014 which
restricted the selling of alcohol in the CBD to no later than 1:30.

Proof Commonwealth Government was intended to be weak

-Only 5 exclusive powers
-Residual powers are unlimited

Commonwealth Financial Powers

Section 51 (ii) The taxation power
-The Commonwealth uses this power to raise taxes

70
-The States also raise taxes under this power
-Exception of customs, bounties and excise which s.90 makes exclusive to the
Commonwealth
-Since WWII only the Commonwealth raises money through income tax.
-Commonwealth taxing powers have increased exponentially at the expense of the State’s
taxing powers
eg. Uniform Tax Case 1942
Section 90: The Customs, Duties and excise power
-Customs, bounties and excise are charges on goods crossing a border, or forms of taxation
applied to goods- things that are purchased by consumers and producers.
-To prevent the States from reintroducing taxes on trade between states, S90 was made an
exclusive power
-It is the exclusive allocation of customs, duties and excise to the Commonwealth that created
the Vertical Fiscal Imbalance
The VFI means there is an imbalance in the taxing powers and spending
obligations between the two levels of government.
50, 50 responsibility, 80,20 revenue. Favouring the Commonwealth.

t
en
-A feature of these taxes is that they are not clearly defined in the Constitution thus
encouraging a broad interpretation by the High Court
m
-A broad interpretation of excise may impoverish the states by preventing the states from
charging fees.
cu
eg. Ha and Hammond vs NSW Cases 1997
Do

Section 96: Grants Power

-The Constitution contains several mechanisms to allow for the transfer of Commonwealth
surplus revenues to the States
p

-Section 96 is one of these mechanisms

wa

-The Commonwealth may pass a law granting a State or several States money.
-The grant may be untied
ks

-The money may be spent by the State government in anyway it chooses.

These are called general purpose payments.
in

-Permits the Commonwealth to attach conditions ‘as it thinks fit’

Th

-This power has been used to attach conditions to grant money, dictating to the
states how to spend the money.
-These payments are called tied grants or specific purpose payments
-The Commonwealth may only make money available to the States if they agree to spend it
the way the Commonwealth decides
eg. Asset Recycling Scheme
-States are encouraged by the Commonwealth to sell State government owned infrastructure
to the private sector and then invest the money in new infrastructure.
-The selling of government infrastructure is the Commonwealth’s policy by it is the State’s
infrastructure that is affected.

71
Section 87: The Braddon Blot
-Another mechanism intended transfer funds between the Commonwealth and the States
-Required the Commonwealth to pay the States 75% surplus revenues from the Section 90
‘excise’ revenues it collects.
-This section had a time limit of 10 years.
-The Commonwealth ended the payments as soon as it was able to do so
Spent Sections- Once the time limit expires they cease to function.
Section 92: Trade within the Commonwealth to be free
-Trade within the States shall be free
eg. Cole v Whitfield 1988

High Court Decisions- Financial Powers

Uniform Tax Case 1942- Section 51 (ii) Taxation Power
-During the Second World War Australia came close to invasion by Japanese forces
-The Commonwealth required greater capacity to fight the war and passed four pieces of
legislations

t
-Income Tax Act 1942: Established a federal income tax.

en
-States Grants Act 1942: Made grants to each state equal to the income tax a State
raised itself
m
-Income Tax Assessment Act 1942: Amended to force taxpayers to pat their federal
cu
income tax before any State income tax
-Income Tax (Wartime Arrangements) Act 1942: Required the states to transfer all
Do

their income stall, all offices, furniture and official tax records to the Commonwealth.
-The effect of these acts was a commonwealth takeover of tax
p

-The states challenged the 4 acts in the High Court

wa

-The High Court found the 4 acts to be constitutional

-There was an additional challenge in 1957 after the conclusion of war and the acts remained
ks

in force
-Due to Section 51 (ii), Section 96 and Section 109
in

-After 1941 the states were effectively prevented from collecting income tax
Th

-Income tax is one of the most important taxes contributing to 57% of all tax collected in
Australia between 2013-2014.
-Before WWII the States were less reliant on grants under S.96 and the VFI was smaller
-Since the Uniform tax case the VFI started to favour the government
Ha and Hammond vs NSW Cases 1997- Section 90: The Customs, Duties and Excise Power
-State Governments had levied fees on the sale of tobacco and business franchise fees on
some types of business.
-The High Court found these fees to be ‘excise’ which are exclusive to the Commonwealth
under S90.

72
Cole v Whitfield 1988- Section 92: ‘Absolutely free’ trade between States’
-A Tasmanian company was not allowed to import smaller South Australian Crayfish
because the Tasmanian government had restricted the size of crayfish that could be sold to
protect Tasmania’s own crayfish stocks.
-The Law was intended to protect the Tasmanian fishing industry, not to limit interstate trade.
-New interpretation meant that a State could not pass a law which had the effect of protecting
intrastate trade and commerce (trade within a state) by giving it a threatening or competitive
advantage over interstate trade or commerce (trade between States)
-Undermined the legislative ability of the States

t
en
m
cu
Do
p
wa
ks
in
Th

73
Changes in the Federal Balance of Power
Changes in the federal balance of power occur as a result of two things;
-Changes to the words of the Constitution
-Changes in the way the Constitution works

Constitutional Change
Formal
Actual changes to the words of the
Constitution.
Section 128 of the Constitution outlines
the mechanism for altering the wording
of the Constitution.
Referendum- A formal vote by the people
Informal
Changes to the way the Constitution works.
By changing the operation of the
Constitution.
There are ways in which the operation of
the Constitution can change without the
words changing.
-High Court interpretations of the words and

t
of Australia to change the words of the sections in the Constitution can change its

en
Constitution. meaning.
m
-Referral of powers by States to the
Commonwealth
cu
-Cooperation between States and
Commonwealth through COAG and
Do

unchallenged legislation/
-Coercion of States through the use of
p

Commonwealth financial power

wa

The Constitution
ks

-Creates the Commonwealth and preserves the States

-Defines the powers of each
in

-Creates mechanisms for resolving disputes

Th

eg. High Court and S 109

-Financial Sections
-Section 96: Grants power
-Section 51 (xxxvii): Referral of Powers
-Section 117: Prevents the Commonwealth from favouring any states

74
The Commonwealth Grants Commission
The Commonwealth Grants Commission (CGC) is a statutory authority, an executive agency
set up by a law passed by Parliament.
-Commonwealth Grants Commission Act 1973
-Purpose of the Commission is to distribute the Commonwealth monies to the States under
S96
-The purpose of the CGC is to achieve Horizontal Fiscal Equalisation (HFE)
-To maintain a consistent standard of living across the States.
eg. During WA mining boom the State received large royalties from mining that most
other states lacked. States such as South Australia and Tasmania, which both have
small populations and low taxes bases, would have a much lower standard of living
than WA if not for HFE.
-Since 2000 the Grants Commission has been responsible for the distribution of the Goods
and Services Tax (GST) to the States.
-The GST is technically a form of excise tax and thus can only be collected by the federal
parliament
-In an effort to restore some financial independence to the States every cent of GST collected

t
en
by the Commonwealth is granted to the States as untied grants
Vertical Fiscal Imbalance
m
-80% Commonwealth and 20% States revenue collection yet responsibilities are 50/50. Thus
distribution and s96 are extremely important.
cu
Specific Purpose Payments
Do

-Grants based on conditions

-Williams no.1 and no.2
Difficult to monitor this however.
p

Incentive Payments
wa

-The federal government strived to control SPPs by adding incentives for those state and
territory governments that follow their intended purposes/targets.
ks

eg. Asset Recycling Initiative encourages the states to meet federal agenda. Allows for
Federal government to exert influence over State Government’s residual powers.
in
Th

75
Referral of Powers
-Section 51 (xxxvii) allows for the States to pass powers to the Commonwealth.
-Also contains an adopting power which allows other States to adopt the
Commonwealth legislation if they wish.
-May contain a sunset clause, which means that the referral is temporary
-Referrals of power are relatively rare as States are protective of their powers.
Examples include:
-State powers over the custody and maintenance of children of divorced parents were
referred by all states except for WA between 1986 and 1990. As a consequence the
Commonwealth created a new “Chapter 3 court” using its Section 71 powers. The
new federal court is called the Federal Family Court.

-Victoria referred its industrial relations powers to the Commonwealth after Premier
Jeff Kennett made large scale changes to the State’s industrial relations laws.

-Referral of State criminal law powers for anti-terror laws. The crime of terrorism has
led to the referrals of state criminal law powers. Section 51 (vi) does not cover law

t
en
and order within Australia and cannot be used by the Commonwealth to make anti-
terror laws. The Howard government wished to develop a set of strong uniform
m
national laws to deal with this newly emerging criminal threat. The Howard
government successfully asked the States to refer certain criminal law powers to the
cu
Commonwealth to give it the constitutional authority to pass new laws. Suppression
Do

of Terrorist Bombings Act 2002 and the Security Legislation (Terrorism) Act 2002
required the referral of powers.
p

-Under the new scheme each State has referred the text of the Corporations Bill 2001
wa

and the Australian Securities and Investments Commission Bill 2001 to the
Commonwealth as a referred ‘matter’.
ks

Coag
in

-Where the Premiers, PM and Chief Ministers (Territory equivalent of Premier) meet to
Th

discuss and coordinate issues confronting the Commonwealth and states such as;
-GST
-National Disability Insurance Scheme
-Infrastructure
-Closing the Gap Initiative
-Water (particularly with regards to the Murray Darling Basin states)
-Coordinating Anti-terrorism laws
-COAG can lead to both cooperative and coercive federalism
Cooperative
Water Act 2008- Cooperative federalism was achieved when the Water Act 2008 came into
effect to address, a referral of powers by the States, to the Federal Government. This allowed
Commonwealth to address the concerns of water management in regards to the Murray River
flows which impacted 4 states.
Gonski- Cooperative federalism was achieved through Intergovernmental Agreement or
‘National Agreement’ this occurred with the NDIS and education reforms called Gonski.

76
Coercive
National Competition Policy- The National Competition policy under the Keating
government – a move by the government to privatise state assets. Also the National Reform
Agenda has also been used to create incentive based, tied grants- this ‘bends the States arm’
to comply with Commonwealth objectives.
Abbott funding cuts- Abbott governments $80 billion cuts to state funding for schools and
hospitals forcing the states to secure an increase in tax receipts and ways of achieving it,
hence their agreement at the COAG meeting to keep Commonwealth and State tax changes
on the table, including the GST and medicare levy for the Commonwealth’s white paper on
Tax reform.

High Court Interpretation

The high court has been the single most important agent for constitutional change in
Australia since federation.
-Section 71 establishes the High Court
-Section 76 grants jurisdiction to interpret the constitution
History of High Court Interpretation

t
en
Defending State Powers 1903-1920
-Founding fathers were keen to preserve State Sovereignty within a coordinate/cooperative
federation m
cu
-Unfortunately for the States the Constitution does not express this intention
-Early judges needed to develop doctrines of interpretation that would help to avoid these
Do

centralising tendencies in the Constitution

Doctrines of Interpretation- Rules, Guidelines or policies that courts use when deciding the
meaning of a statute or constitution. They ensure consistency between successive decisions
p
wa

and that court decisions are coherent.

Protecting State’s Concurrent powers
The Doctrine of Reserved Powers
ks

-Was created to protect the States in the areas of Section 51 concurrent powers
in

-When the High Court interpreted concurrent powers it did so in a narrow sense, that
preserved the power of the states
Th

eg. S109 would be interpreted in a narrow way.

Protecting State’s Residual Powers
The Doctrine of Implied Immunities of Instrumentalities
-The Constitution contains implication that State powers should be preserved
-States should be immune from Commonwealth Interference
Cases Defending State Power
Peterwald Case 1904
-Section 90 makes ‘excise’ an exclusive Commonwealth tax.
-Applying the Doctrine of Reserved Power, Griffiths CJ held that a NSW tax imposed on
brewers was not an excise tax
-He defined ‘excise’ very narrowly

77
Railway Servants Case 1906
-Dispute between WA and the Commonwealth about the right of the Commonwealth to
legislate working conditions for workers employed by the WA government
-The Court applied the Doctrine of Implied Immunities of Instrumentalities found that
Commonwealth industrial laws passed under S51(xxxv) could not apply to State government
railway employees
Increasing Commonwealth Power: 1920-1971
-The way the Constitution is written means that it will tend to centralise power and erode
State Sovereignty
-This is because state powers are not specified
-Therefor cannot be interpreted or protected by the High Court
-During this period State powers were eroded in the following ways:
-The Commonwealth intruded upon State Legislative powers
-The Commonwealth’s financial power over the States increased.
Commonwealth intruded upon State Legislative powers
Engineers Case 1920: Section 51 (xxxv)-The Industrial relations power- Trade union was
involved in an industrial dispute with a sawmilling factory owned by the WA government.

t
en
-The Commonwealth sought to legislate under power given by Section 51(xxxv), the
industrial relations power, to make a law for State Businesses when a dispute crossed state
borders m
-In this case the workers belonged to the Amalgamated Society of Engineers a national
cu
institution thus the dispute extended beyond the WA border
Do

-The High Court agreed giving a much broader interpretation to Section 51(xxxv)
-Reversed the precedent of the Railway Servants Case
Commonwealth’s Financial Power over the States increased
p

Uniform Tax Case 1942- Section 51 (ii) Taxation Power

wa

-During the Second World War Australia came close to invasion by Japanese forces
-The Commonwealth required greater capacity to fight the war and passed four pieces of
ks

legislations
-Income Tax Act 1942: Established a federal income tax.
in

-States Grants Act 1942: Made grants to each state equal to the income tax a State
Th

raised itself
-Income Tax Assessment Act 1942: Amended to force taxpayers to pat their federal
income tax before any State income tax
-Income Tax (Wartime Arrangements) Act 1942: Required the states to transfer all
their income stall, all offices, furniture and official tax records to the Commonwealth.
-The effect of these acts was a commonwealth takeover of tax
-The states challenged the 4 acts in the High Court
-The High Court found the 4 acts to be constitutional
-There was an additional challenge in 1957 after the conclusion of war and the acts remained
in force
-Due to Section 51 (ii), Section 96 and Section 109
-After 1941 the states were effectively prevented from collecting income tax
-Income tax is one of the most important taxes contributing to 57% of all tax collected in
Australia between 2013-2014.
-Before WWII the States were less reliant on grants under S.96 and the VFI was smaller,
since the Uniform tax case the VFI started to favour the government
S109- Covering the Field
-Broder understanding of 109 meant greater power to the Commonwealth- thus overturning
interpretation of the Doctrine of Reserved Powers.

78
-Covers the field of s51 heads of power- meaning the Commonwealth could to an extent
influence the state’s abilities to use power.
-This was established in 1930 with the Ex parte McLean 1930 case.
S96- Grants to states
-Prescribes the Commonwealth significant powers, especially when you consider the trend of
greater financial powers.
-VFI
-States impacted by SPP and tied, incentivised grants
Concrete Pipes Case 1971- s51(xx) Corporations Power
-Very broad term, refers to any incorporated body- unions, charities, not-for-profit
organisations, sporting clubs etc.
-The right of the Commonwealth to legislate for the intrastate activities of corporations under
s51(xx) was accepted
-Thus by gaining control of the legislative ability to make laws on incorporated body, the
Commonwealth gained huge powers.
Limits on Commonwealth Power
State Banking Case 1947

t
en
-Struck down legislation that attempted to force the States to bank with the Commonwealth
Bank.
m
Bank Nationalisation Case 1948- Section 92 (Interstate Trade)
-ALP Government’s attempt to nationalise all banks on the grounds that it prevented freedom
cu
of interstate trade under Section 92
Do

Communist Party Case 1951

-Commonwealth attempted to ban the Communists but this was defeated.
Increasing Commonwealth Power: 1971-2017
p

Expansions of Commonwealth Power- Section 51 (xxix) external affairs

wa

-Links with international agreements

-S75. Original jurisdiction links with international treaties
ks

-Particularly in regards to land management and assets

Koowarta 1982
in

-Prevented a Queensland Government decision to stop an Aboriginal man John Koowarta

Th

from purchasing a lease of land because he was aboriginal

-The State decision contravened the Commonwealth Racial Discrimination Act 1975
-This Act was passed using the external affairs power to give effect to the UN
Convention on the Elimination of All Forms of Racial Discrimination
Tasmanian Dams
-Used the Koowarta precedent
-The Commonwealth signed the International Convention for the Protection of the World’s
Cultural and Natural Heritage
-Using s51 (xxix) it then passed the World Heritage Properties Conservation Act 1983
-The government listed the Gordon-below-Franklin River, making it unlawful for the
Tasmanian government to dam this river
Cases concerning Financial Powers
Ha and Hammond vs NSW Cases 1997- Section 90: The Customs, Duties and Excise Power
-State Governments had levied fees on the sale of tobacco and business franchise fees on
some types of business.
-The High Court found these fees to be ‘excise’ which are exclusive to the Commonwealth
under S90.
Cases concerning interstate trade
Cole v Whitfield 1988- Section 92: ‘Absolutely free’ trade between States’

79
-A Tasmanian company was not allowed to import smaller South Australian Crayfish
because the Tasmanian government had restricted the size of crayfish that could be sold to
protect Tasmania’s own crayfish stocks.
-The Law was intended to protect the Tasmanian fishing industry, not to limit interstate trade.
-New interpretation meant that a State could not pass a law which had the effect of protecting
intrastate trade and commerce (trade within a state) by giving it a threatening or competitive
advantage over interstate trade or commerce (trade between States)
-Undermined the legislative ability of the States
Expansion of Commonwealth power- Section 51 (xx) Corporations Power
Legislate on incorporated bodies, including charities, non-profit organisations etc.
Work Choices 2006
-Commonwealth Industrial relations law by the Howard Government
-Potentially couldn’t get through on S51(xxxv) The industrial relations power, therefor the
Howard Government went through S51 (xx). High Court Found that the Government could
indeed legislate industrial relations relating to incorporated bodies.
Water Act 2007
-Control the flow of Water in Murray Darling Basin as the business controlling the flow were

t
en
incorporated and thus legislation could be used to gain power.

m
cu
Do
p
wa
ks
in
Th

80
Formal and Informal Constitutional Change

Formal Change

Referendum
The only formal way to change the Australian Constitution. The procedure is contained in
Section 128 of the Constitution. It requires a bill to pass the parliament proposing the change.
The question to be put to the people within two months and no later than six months after
passing parliament. To succeed the proposal must obtain a double majority.

Where can referendums originate

-Government
-Parliament
-Parliamentary Committees
-Royal Commissions
-Investigative Journalism

t
en
Legal Requirements of a referendum
S128 outlines the following requirements: m
cu
-The proposal must be in the form of a bill. A bill must pass through both houses (or one
House twice) and be signed by the GG.
Do

-The proposal must be put to the people as a Yes or No not less than 2 months and no longer
than 6 months after passing parliament.
-Must achieve a double majority
p

-Majority of people overall

wa

-Majority of people in a majority of states

ks

Successful Referendums
in

1906 Senate Elections- Which altered S13. It altered the timing of Senate Elections
Th

1910 State Debts- Which altered S105. It expanded Commonwealth power to take over State
debts.
1928 State Debts- Which inserted S105A. It establishes the Loan council.
1946 Social Services- Which inserted Section 51 (xxiiiA). It gave the Commonwealth power
to legislate for additional types of welfare.
eg. Maternity allowances, benefits to students, pharmaceutical and sickness benefits were all
added to Section 51 (xxiiiA) which only permitted invalid and old age pensions.
1967 Aborigines- Which altered S51 (xxvi) and deleted S127 (highest ever YES vote 90.8%).
It allowed the Commonwealth to make laws for Aboriginal and Torres Strait Islanders and to
count them in the census.
1977 Casual Senate Vacancies- Which altered S15. The 1975 Whitlam Dismissal was, in
part, caused by the filling of casual Senate vacancies, this fixed the problem.
1977 Territorial Voters- Which altered S128 by including Territory electors as part of the
democratic majority for referendums.
1977 Retirement of Judges- Altered S72 by setting the age of retirement for federal judges (in
the High Court and Federal Courts) at 70 years.

81
Characteristics of Successful Referendums
-Minor technical change
eg. Casual Senate Vacancies and Retirement Age
-Not a grab for power
eg. Only State Debts, Social Service and Aborigines gave powers to the Commonwealth and
none of these were perceived as threatening.
-Wide-spread support
eg. The Aborigines was not opposed by any organisation.
-Weak ‘no’ campaigns
eg. The Aborigines did not have a ‘No’ campaign

Characteristics of failed referendums

-Caution
-Voters are inherently cautious when asked to change the fundamental law of the
country.
-Stability in the status quo
-The Constitution is old and stable compared to many others in the world.

t
en
-Apathy
-Not interested enough in the issues surrounding a reform proposal.
-Distrust of power m
cu
-Is this a grab for power by politicians?
Do

1967 Aborigines Referendum

-Altered S51 (xxvi) to allow the Commonwealth to make laws for Aboriginal and Torres
Strait Islanders and deleted S127 to enable Aboriginal and Torres Strait Islander to be
p
wa

counted in the census.

-Supported by both parties- A Coalition government was in office by the Whitlam ALP
Opposition was supportive
ks

-Was ‘manifestly the right thing to do’

in

-The 1960s was a time of increasing rights consciousness with the Civil Rights
Movement in the USA in full swing. The momentum of history was on the side of
Th

change.
-Had support from various pressure groups supporting a YES vote
-Had no public funds or organised groups campaigning for a NO vote
-Was supported by the people who had taken ownership of the issue through street marches
and other forms of direct action
-Achieve over 90% of the national YES vote and passed in all 6 states; it has the highest YES
vote of any referendum in history

82
Informal Change
-Decisions of the High Court
-Unchallenged Legislation
-Referral of Powers

Decisions of the High Court

Can affect the meaning of the constitution in two major ways:
-Federal balance of power
-The Discovery of rights that are implied but not specified in the Constitution
Specified Constitutional Rights
The Constitution deals with rights in two ways:
-Prevent governments from limiting certain freedoms
-Oblige governments to provide certain entitlements
Specified Constitutional Right: A freedom or entitlement that is explicitly expressed in the
Constitution.
-Section 41: Creates a transitional right to cote at the time of federation
-Section 80: Creates an entitlement to trial by jury in federal (not State) indictable

t
en
(serious) cases.
-Section 116: Prevents Australia from having an official religion. It protects freedom
of religion. m
cu
eg. Scientology Case 1983, The High Court interpreted the meaning of religion
broadly allowing Scientology to be exempt from paying taxes on the Victorian
Do

Commissioner for Payroll Tax. According to the High Court a religion does not have
to be an established faith.
-Section 117: Prevents any discrimination against an Australian citizen based on their
p

State of residence.
wa

-Section 92: Ensures ‘trade’ commerce and intercourse among the states be absolutely
free
ks

eg. Cole v Whitfield

in

-Section 51 (xxxi): Ensures that if the Commonwealth resumes the property of a

person it must compensate them on ‘just terms’
Th

Implied Constitutional Rights

Implied Constitutional Right: A freedom or entitlement that is not expressed specifically but
can be inferred in the Constitution.
eg. Implied right of political communication
Australian Capital Television v Commonwealth 1992 was a case in which regulations
imposed by the Political Broadcasts and Political Disclosures Act 1991 limited political
advertising during an election campaign.
-High Court considered S7 and S24 and due to the representative nature of Australian
democracy ruled that it was necessary for the people to hear the arguments of the parties
before voting in an election
-The High Court agreed with the Companies and struck down the section of the Political
Broadcasts and Political Disclosures Act 1991 which limited political advertising.
-This new implied right is now applicable in future cases, such as McCloy v New South
Wales 2015.

83
Referral of Powers
-Section 51 (xxxvii) allows for the States to pass powers to the Commonwealth.
-Also contains an adopting power which allows other States to adopt the
Commonwealth legislation if they wish.
-May contain a sunset clause, which means that the referral is temporary
-Referrals of power are relatively rare as States are protective of their powers.
Examples include:
-State powers over the custody and maintenance of children of divorced parents were
referred by all states except for WA between 1986 and 1990. As a consequence the
Commonwealth created a new “Chapter 3 court” using its Section 71 powers. The
new federal court is called the Federal Family Court.

-Victoria referred its industrial relations powers to the Commonwealth after Premier
Jeff Kennett made large scale changes to the State’s industrial relations laws.

-Referral of State criminal law powers for anti-terror laws. The crime of terrorism has
led to the referrals of state criminal law powers. Section 51 (vi) does not cover law

t
en
and order within Australia and cannot be used by the Commonwealth to make anti-
terror laws. The Howard government wished to develop a set of strong uniform
m
national laws to deal with this newly emerging criminal threat. The Howard
government successfully asked the States to refer certain criminal law powers to the
cu
Commonwealth to give it the constitutional authority to pass new laws. Suppression
Do

of Terrorist Bombings Act 2002 and the Security Legislation (Terrorism) Act 2002
required the referral of powers.
p

-Under the new scheme each State has referred the text of the Corporations Bill 2001
wa

and the Australian Securities and Investments Commission Bill 2001 to the
Commonwealth as a referred ‘matter’.
ks

Unchallenged Legislation
in

-The Commonwealth must be lawful under the Constitution. If it is not then it risks being
Th

struck down as ultra vires by the High Court.

-To be lawful legislation must meet the following criteria:
-The law should reference a head of power within the Constitution. Heads of power
are the exclusive and concurrent powers specified and enumerated in the Constitution.
-If the law does not reference a head of power then it must avoid being challenged in
the High Court.
-Unchallenged legislation remains effective law if it is never challenged.
-At the heart of this concept there are two principles:
-The rule of law that an independent court must decide is a law is breached, including
constitutional law. A law cannot be judged unconstitutional except by the High Court.
-Courts cannot act proactively. Judicial decisions are always ex post facto. The High
Court does not have the power to declare laws ultra vires if they are not disputed in
Court.

84
The CSIRO
-The Commonwealth Scientific and Industrial Research Organisation is the nation’s most
important institution for the development and application of science and technology to real-
world issues.
-The Science and Industry Research Act 1949 established CSIRO
-There is no constitutional head of power giving the Commonwealth Parliament power to
pass this Act.
-This case has never been challenged and thus continues to operate.
The Snowy Mountains Scheme
-The threat of Japanese Invasion during WWII made the Commonwealth government
desperate to stimulate post-War growth in Australia
-The SMS was designed to achieve both economic and population growth
-Largest engineering project in Australian history
-The Commonwealth lacked constitutional power and passed the legislation Snowy
Mountains Hydro-Electric Power Act 1951 using the defence power S51(vi)- a stretch.
-This case has never been challenged and thus continues to operate.

t
en
m
cu
Do
p
wa
ks
in
Th

85
Proposed Reform

Constitutional Recognition
-Constitutional recognition is the move towards recognising Aboriginal and Torres Strait
Islander peoples in Australia’s founding document – our Constitution.
-Currently, our Constitution doesn’t contain any references to the First People of Australia.
They were not given a say in the convention debates of the 1890s during the drafting of the
Constitution in 1901, and they were not able to vote on it.
-Since then, many Australians have advocated for changes to the Constitution and much work
has been done on what form recognition should take.

Reasons for change

-‘Birth certificate of our nation’
Yet fails to recognise the original inhabitants
-Discriminatory sections of the constitution

t
-Addressees the history of exclusion of Indigenous peoples in the life of the nation

en
-Improve sense of self worth
-Enshrining the principles of non-discrimination
m
-Building positive relationships between Indigenous Australians and the broader community
cu
Previous steps towards Constitutional Recognition
Do

1967- Successful referendum

-More than 90% of the population voted yes
p

-Allowed aboriginal people to be counted in the census and for the Commonwealth to make
wa

laws for the benefit of the Aborigines

1999- Failed referendum
ks

-Referendum to recognise Aboriginal and Torres Strait Islanders in the preamble to the
Constitution is unsuccessful
in

2012- The Expert panel on Constitutional recognition

Th

-Recommendations include:
-Remove S25
-Insert S51 A: Recognise Aboriginals and preserve the Australian Government’s
ability to pass laws for their benefit.
-Remove 127
-Insert 116A ban racial discrimination
2013 (February)- Government passes the Act of Recognition as an interim step towards a
referendum
-Has a sunset clause of 2 years
2015 (December)- PM Malcolm Turnbull and Opposition Leader Bill Shorten announce the
establishment of the Referendum Council.

86
Proposed Changes
Remove Section 25 – which says the States can ban people from voting based on their race;
Remove section 51(xxvi) – which can be used to pass laws that discriminate against people
based on their race;
Insert a new section 51A – to recognise Aboriginal and Torres Strait Islander peoples and to
preserve the Australian Government’s ability to pass laws for the benefit of Aboriginal and
Torres Strait Islander peoples;
Insert a new section 116A, banning racial discrimination by government; and
Insert a new section 127A, recognising Aboriginal and Torres Strait Islander languages were
this country’s first tongues, while confirming that English is Australia’s national language.

Arguments against Constitutional Recognition

-Inefficient in recognising contemporary Indigenous issues
-Prefer to make other changes such as treaty, sovereignty and land rights
-The symbolic nature of recognition leads some to believe that it can have no tangible impact
on the lives of Indigenous Australian peoples
-By including the phrase ‘Respecting the continuing cultures, languages and heritage of

t
en
Aboriginal and Torres Strait Islander peoples’ it opens a gateway for anyone with any sort of
Aboriginal background to be given an incentive claim that their actions are constitutionally
protected part of their ‘culture’ m
cu
What aspects of this change could be Successful
Do

-Wide spread support for the removal of S25 and section 51(xxvi)
-Minor technical change
p

-Lack of a no campaign on these issues

wa

What aspects of this change could be unsuccessful

ks

-Cautious voters
-The symbolic nature of the recognition could result in apathy from the voters
in
Th

87
Proposed Reform

Australian Republic Referendum

A proposed law: To alter the Constitution to establish the Commonwealth of Australia as a
republic by a President and Governor-General being replaced by a President appointed by a
2/3 majority of the members of the Commonwealth Parliament.

1999 Republic Referendum

-6 November 1999 two question referendum to amend the Constitution of Australia
-First question: Australia should become a republic with a President appointed by Parliament
-Second question: Whether Australia should alter the Constitution to insert preamble
-Opinion polls had indicated that a majority of the electorate favoured a republic
-Australia is a constitutional monarchy under the Constitution of Australia adopted in 1901
with the duties of the monarch performed by a Governor General selected by the Australian
Government. Australian republicanism has persisted since colonial times
Referendum Results:

t
en
Yes: 5,273,024- 45.13%
No: 6,410,787- 54.87%
Reasons for defeat: m
-Australians have traditionally been cautious about proposed constitutional change
cu
-Public Opinion varied wildly
Do

Opinion Groups:
Traditional Monarchists: Who held their beliefs largely on principles and/or sentimental
attachment to the monarchy, in part based on traditional associations with the United
p

Kingdom, the Commonwealth of Nations and a personal identification with Elizabeth II and
wa

her family. Many were older or from rural rather than urban areas.
Pragmatic Monarchists: Whatever the argued weakness of the current system, it also had
ks

many strengths. A constitutional monarchy provides the basis for stable democratic
government, with the Governor General acting as an impartial, non-political ‘umpire’ of the
in

political process. Many distrusted the Australian political classes and believed the provision
Th

of executive powers to a local politician would result in an undesirably partisan head of state.
Minimal change republicans: Aimed to remove the monarchy, but otherwise maintain the
current system as unchanged as possible, thus creating a parliamentary republic.
Progressive Republicans: Wanted a popularly elected head of state.
Radical Republicans: Saw the minimal change option as purely cosmetic, and desired
comprehensive revision to the current Westminster-based system and possibly the
implementation of a presidential or a semi-presidential system.
Tactical Voters: Took a long-term view and voted against their inclinations to avoid more
radical changes in the future.
The Uncommitted: Certain proportion of the electorate remain unattached to either side.
Uncommitted ‘swinging voters’ can be a decisive force in shaping election and referendum
results especially in countries where voting in compulsory.

88
Alternative methods for selecting a president
-Election
-By the federal Parliament alone
-By federal and state Parliaments
-By a popular vote
-Selection
-By the Prime Minister
-By consensus among the Government and Opposition
-By a constitutional council

The Yes Campaign

AUSTRALIAN REPUBLICAN MOVEMENT
-Independence and a head of state
-Australia is an independent country and thus it is inappropriate to share a monarch
with the United Kingdom
-Australian monarch is not Australian and thus not representative of Australian values

t
eg. Former Chief Justice Gerard Brennan “so long as we retain the existing system

en
our head of state is determined for us essentially by the parliament at Westminster.”
-Multi-culturalism and Sectarianism
m
-Republicans associate the monarchy with British identity and subsequently argue that
cu
Australia has changed demographically and culturally
-Democracy
Do

-Unelected head of state

-Egalitarianism
p

-Should not be based off of a birth right

wa
ks

The No Campaign
AUSTRALIANS FOR CONSTITUTIONAL MONARCHY
in

-There is the very great practical difficulty of securing constitutional change in Australia,
Th

given the provisions of s128 of the Australian Constitution

-There would be many people who for reasons of principle or other priorities would fight the
referendum. Any referendum that promises more real or apparent power to any politician-
even a single one as president- faces an especially rough passage
-It is important to emphasise that in every legal and real respect Australia is a completely
independent country. Its independence of the legislative power of the Westminster Parliament
began long ago.
-Republicans do not speak with a single voice
-We should keep in mind that our present constitutional arrangement is remarkably
inexpensive- president would require advisers and aids
-There is the personality of the present monarch
-An argument against nationalism. Much of the rhetoric of republicanism leads itself to 19 th
century nationalism Nazi Germany
-Dangers of ill-judged constitutional change. There is a danger that an elected republican
President would conceive that he or she had the separate legitimacy which came from such
election or appointment. In short, there is a risk that a local Head of State-especially one
enjoying the legitimacy of a vote into office-would assert and exercise reserve powers which
would be the most unlikely to be used by an appointed Governor-General or State Governor
-Stability peace and consistency

89
-Heritage and historical bonds with the UK

Modern Context
-More Australians that ever want their country to finally become a republic
-Malcolm Turnbull and Bill Shorten have both supported the move
-In a poll released by ANY Australian Electoral Study support for an Australian head of state
has hit 53%, outpointed the 51% result in a Newspoll earlier this year
-Bill Shorten has promised a national vote on Australia becoming a republic during the first
term of a Labor Government

t
en
m
cu
Do
p
wa
ks
in
Th

90
Contemporary Legal Issue
Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA
24 (20 June 2014)

Background
-The issue of Asylum Seekers has been a major political issue since John Howard made a
famous speech.
-Australian saw a large increase in the amount of boat arrivals between 2008 & 2011
-Both the major parties (the coalition & the ALP) have made tough policies trying to “stop
the boats” Such as the “Malaysian Solution” (2011, ALP) and the “Border Protection”
(coalition) policies
-Both the ALP and the Coalition have faced numerous High Court Challenges to the validity
of their legislation and also the inconsistencies of their legislation with the Migration Act.

Case Description

t
en
- The plaintiff entered Australia by boat via Christmas Island in 2012 as an unlawful non-
citizen.
m
-The applicant was determined as a refugee by the Refugee Review Tribunal (RRT) under the
Refugees Convention 1951 and satisfied the s 36(2)(a) criteria for a protection visa under the
cu
Migration Act 1958 (Cth) (the Act).
Do

-However, he was not granted a protection visa as the maximum number had been issued for
that financial year (2,773). The Minister was able to do this under section 85 of the Act.
p

The Decision
wa

-The High Court found that there was a conflict between section 65 of the Act which
stipulates that the Minister has a duty to grant or refuse a visa after considering a valid
ks

application and section 85 of the act which allows them to limit the amount of application per
in

financial year
-The Court was unanimous in its decision.
Th

Significance
-The court pointed out inconsistency in the laws
-Asylum seekers were not deported
-Showed the importance of judicial review.
-Demonstrated the rule of law in that all government decisions should be based on the law.
-Ministers with a lot of power can be held accountable for their actions through an
independent judiciary.

91
Contemporary Political Issue
Section 18c of the Racial Discrimination Act 1975 Cory Bernardi and Associates vs Malcolm
Turnbull

Background
-Malcolm Turnbull challenged and defeated Tony Abbott (54-44) in a leadership battle to
become Australia’s 29th Prime Minister
-This close leadership battle left some coalition supporters of Tony Abbott disillusioned with
the party and the new leader. These members came from the right wing of the party.
-The coalition’s razor thin victory (1 seat) in the 2016 election has left many coalition
backbenchers publically questioning Mr Turnbull’s leadership and the even stating that they
would have performed better under Tony Abbott.
-These political rivals have sort to challenge Mr Turnbull’s political power through the
introduction of legislation in the Senate

t
Political Power of the Prime Minister

en
-A group of 20 senators, including all but one Coalition upper house backbencher, have co-
m
sponsored conservative firebrand Cory Bernardi’s bill to remove the words “offend” and
“insult” from section 18C of the Act, rebelling against the Prime Minister’s call for MPs to
cu
focus on budget repair.
Do

-Mr Turnbull said the government had “no plans” to make any changes to 18C and declared
he was not at all “distracted” by the backbench pursuit.
-The normal process for initiation of legislation is to go through the party processes within
p

the party room to get support then put the legislation to Cabinet for their approval. Once
wa

Cabinet has approved the legislation then a strategy is formed of who will introduce the
legislation and in what house will it be introduced.
ks

-This act from the backbenchers is aimed at doing a number of things:

1. Testing the support of the Prime Minister within his own party.
in

2. Showing their support for Mr Turnbull’s political rival (Tony Abbott)

Th

3. The backbenchers have a firm belief that the terms “insult” and “offend” need
to be removed from the Racial Discrimination Act.

Significance
-Evidence of a backbench revolt
-Test of PM power
-Test of the power of cabinet
-Test of Private Members Bills (PMB)

92
Unit 4:

Accountability
t
en
m
and Human
cu
Do
p

Rights
wa
ks
in
Th

93
The Accountability of Parliament

Governance

Governance
The Exercise of power or authority- political, economic, administrative or otherwise- to
manage a country’s affairs (and resources). It comprises the mechanisms, processes and
institutions through which citizens and groups articulate their interests, exercise their legal
rights and meet their obligations and mediate their differences.

Good Governance
Means competent management of a country’s affairs (and resources) in a manner that is open,
transparent, accountable, equitable and responsive to people’s needs. Key elements of good
governance are based around the following political and economic principles.
Political Principles
-Good governance is based on the establishment of a representative and accountable form of

t
en
government. Ie. Democracy where the government is representative of the people and
accountable to the people.
m
-Good governance requires a strong and pluralistic civil society, where there is freedom of
cu
expression and association. In other words, participation, the involvement of the people in all
aspects of life and government.
Do

-Good governance requires good institutions and rights, the sets of rules governing
characteristics and abilities of individuals and organisations that should not be limited by law.
It also requires the negotiations of differences between them, in other words the consensus of
p

those involved.
wa

-Good governance requires the primacy of the rule of law, maintained through an impartial
and effective legal system.
ks

-Good governance requires a high degree of transparency and accountability in public

in

processes other words open and accountable government.

Th

Participation
The involvement of the people in all aspects of life and government.

The Rule of Law

A concept that all authority is subject to, and constrained by the law. Government is not
arbitrary. All citizens/persons operate within the law and are controlled by it. Everyone is
entitled to have a matter heard by an independent and impartial court or tribunal.
-Government is not arbitrary. The government must govern in accordance with the law.
Eg. Marriage Equality Act (2015)
-All people operate within the law and are controlled by it.
eg. Troy Buswell a former Liberal member for the WA Legislative Assembly was convicted
and fined for 11 motor vehicle offences whilst holding the position of Minister for Transport
-Everyone is entitled to have a matter heard by an independent and impartial court or
tribunal.
eg. Al Jrood v The State of Western Australia [2016] WASCA 73

94
Open Government
The opening of government processes, proceedings, documents and data for public scrutiny
and involvement- is now considered as a fundamental element of a democratic society. Both
greater transparency and public participation can not only lead to better policies and services,
they can also promote public sector integrity, which is essential to regaining the trust of
citizens in the neutrality and reliability of public administrations.

Human Rights
Rights that belong to all people simply because they are human beings. A basic principle of a
free society if that people have inalienable right that cannot be ‘given away’ or legitimately
reduced by the actions of government. A person’s fundamental human rights include legal
rights such as the right to a fair trial.
Civil Rights: The rights of citizens to equality and liberty. Sometimes referred to as ‘first
generation’ rights. Civil rights ensure peoples’ physical integrity and safety. This includes
protection from discrimination on grounds such as physical and mental disability, gender,
religion, race, national origin, age, or sexual orientation; and individual rights such as
freedoms of thought and conscience, speech and expression, religion, the press and

t
en
movement.
Political Rights: A political right is a right/power to participate directly or indirectly in the
m
establishment or administration of government. An example of a political right includes
cu
freedom of assembly and the right to vote.
Economic Rights: Rights that concern the production, development and management of
Do

material for the necessities of life.

eg. The right to work, the right to a minimum wage, the right to form a trade union, the right
to strike or the right to own property.
p

Social Rights: Rights that give people security as they live and learn together, such as in
wa

families, schools and other institutions.

Cultural Rights: The right to preserve and enjoy one’s own cultural identity and development
ks

which may include language or religion. They deal with groups of people, rather than with
in

individuals.
Th

Consensus
A group process where the input of everyone is carefully considered and an outcome is
crafted that best meets the needs of the group.

Accountability
Being responsible for one’s conduct, decisions or (in)actions. Accountability is an essential
feature of responsible parliamentary government.

95
Natural Justice
Developed over time in common law countries to ensure that decision-making is fair and
reasonable.
-Informing people there is a case against them.
-Giving the accused a right to be heard.
-Adjudicators (judge) not having a personal interest in the outcome
-Decisions being made only on the basis of clear and logical evidence as quickly as
practical.

Equity
In law, the term equity refers to a particular set of remedies and associated procedures.

Effectiveness
Government effectiveness captures perceptions of the quality of public services, the quality
of the public servants and the degree of its independence from political pressures, the quality
of policy formulation and implementation, and the credibility of the government’s
commitment to such policies.

t
en
Australia has a fairly good reputation for good governance in Australia is not perfect.
m
cu
Gillard Captain’s Pick January 2013
-Julia Gillard has endorsed Olympic gold medallist Nova Peris to top Labor’s Northern
Do

Territory Senate ticket, bypassing normal pre-selection processes.

-Senator Crossin was a well-known Rudd supporter
p

-Lack of Accountability and transparency

wa

Tony Abbott: Knights and Dames

ks

-Tony Abbott bypassed colleagues on dames and knights

-Didn’t bring to the party room
in

-The Prime Minister can be held accountable by the party if they continue to make decisions
Th

without consultation with their Party members

-The Prime Minister due to being the ‘first among equals’ has the ability to make ‘captain
calls’ which are ignorant of principles of accountability

Williams v Commonwealth No.1

-The legislative cannot make laws that the executive can use however they like
-Williams No 1 brought into the public eye an instance where the government was behaving
arbitrarily and thus the court rules it ultra vires

96
Accountability through Elections

Election- Summary
An elections is a procedure allowing eligible citizens to hold elected officials to account for
their previous term in office and to delegate popular sovereignty to elected officials for the
next term of office.
YES- Accountable
-Constitution enables elections
-Parliament does change from election to election- reflecting the will of the people and thus
the accountability is demonstrated in the removal of pre-existing members.
-Marginal seat campaigns can put significant pressure and ensure accountability of the sitting
members
-How to vote cards using ‘Sitting member last campaigns’ can be effective in holding a
particular member to account.
NO- Issues
-For both Houses, electors generally choose according to party preference rather than
individual candidates so this reduce the direct accountability of individual members

t
en
-Focus of election is usually on party leaders and policies, rather than individual candidates,
and this limits the effectiveness of elections in holding individual MHRs/Senators to account
m
-Above the line voting (Group Ticket Voting) where most voters choose according to a Party
cu
rather than an individual candidate. This diminishes the accountability of Senators to the
people as many are elected via the party, preference deals are little understood by electors
Do

and this diminishes accountability.

-Time span between elections means elections as an accountability mechanism for individual
members/Senators is limited.
p

-Voting systems can favour major parties disproportionally in the House of Reps- this can
wa

indirectly make them less accountable.

-Malapportionment can mean that ‘the will of majority’ may be subservient to the interests of
ks

minorities ie. Xenophon in the 45th or Greens in the 44th

in

-Safe seats may lack the same accountability as marginal.

Th

Constitution
Section 7- Sets out that Senators will have 6 year terms and are chosen by the people of the
State.
Section 24- Sets out that Members of the House are chosen by the people of the
Commonwealth.
Section 28- Establishes that the House has 3 year terms.

Therefore, in theory- in the constitution- we can see that the parliament is accountable to the
people through elections.

HOWEVER
-Bogus Majority in the preferential system.
eg. In 1998 the Howard government won 53% of the seats but only 49.02% of the two party
preferred vote.

97
Seats Change From Election to Election

2013 Election Case Study

Party Pre-Election Post-Election

Coalition 72 90
Australian Labor Party 71 55
Australian Greens 1 1
Katter’s Australia Party 1 1
Independent 5 2

-Coalition increased 18 seats

-ALP decreased 16 seats
-During 2013 the Gillard government brought out controversial policies such as the Carbon
Tax which was a contradiction with an election promise due to the minority government
-Leadership spill reverted to Kevin Rudd disunity within the party
-The change fluctuations in seats proves that elections do hold governments accountable as

t
en
the ALP was unable to secure government for another term

2016 Election Case Study m

cu
Party Pre-Election Post-Election
Do

Coalition 90 76
Australian Labor Party 55 69
Australian Greens 1 1
p
wa

Palmer United Party 1 0

Katter’s Australia Party 1 1
Independent 2 2
ks
in

-Coalition decreased 14 seats

Th

-ALP increased 14 seats

-Leadership spill of Tony Abbott
-Controversial Knights and Dames policy
-Malcolm Turnbull seen as a weak leader, as he went back on promises in order to satisfy the
conservative back benchers to ensure that he wouldn’t suffer a similar fate to Tony Abbott
-The fluctuations in seats proves that elections do hold governments accountable as the
Coalition was only slimly able to hold onto a majority (one seat).

98
Marginal Seat Campaign
-MHR’s in other groups such as pressure groups, private interests or micro parties who use
the marginal seat campaign strategy to hold either the individual parliamentarian or their
party to account for actions in the previous term of Parliament
-Increased likelihood of defeating
-Prime and Leader of the Opposition will spend the most amount of time supporting marginal
seat candidates
eg. In 2016 both candidates covered in excess of 70,000km each on the eight-week electoral
campaign trail between the 8th May and the July 2 nd election.
eg. Cowan WA
-2016 election sitting Member Luke Simpkins (LIB) was challenged by Anne Aly (ALP)
-Marginal nature of the electorate drew significant attention and visits from the leaders of
both major political parties
-Malcy visited 3 times
-Simpkins received 42.22% of the primary vote Aly received 41.68%
-Preferences led to Aly receiving the absolute majority with a swing of 5.20% in her favour
eg. New England NSW

t
en
-Tony Windsor an independent challenged Nationals leader and deputy Prime Minister
Barnaby Joyce
m
-Joyce vulnerable due to dissatisfaction with coal and coal seam gas mining on agricultural
land in the electorate.
cu
-Windsor had previously held the seat and had a strong personal vote
Do

-Joyce was not removed

-Joyce 58.5% Windsor 41.5%
-Joyce reduced from 64.5% of the vote
p

eg. Mayo SA
wa

-NXT target Liberal Jamie Briggs

-Economic woes of SA blamed on federal government undermined Jamie Brigg’s position
ks

-NXT extremely popular

-Rebekha Sharkie won the seat with 55% of the vote
in
Th

Placing the Sitting Member Last Campaigns

-Politically active groups may use advertising to encourage the voters to preference the sitting
MHR last on their House of Representatives ballot paper
-Political parties will use a similar strategy with ‘How to Vote Cards’
-Successful campaigns can have a devastating effect on the sitting candidates’ prospects
eg. Bass TAS
-2016 election
-Andrew Nikolic (LIB) lost his seat by 10.6% to the ALP’s Ross Hart following help from
the pressure group GetUp! Which sent 90 voters to hand out ‘how to vote cards’ putting the
Liberal member last

99
Malapportionment
-The Senate is required by Section 7 of the Constitution to represent the States equally
-Malapportionment is bad electoral practice for a number of reasons including holding
Senators accountable
-Tasmanian Senators are less accountable than NSW Senators because they are answerable to
a much smaller number of votes
-There have been notable small-State Senators who have wielded disproportionate power
over Commonwealth legislation
eg. Senator Nick Xenophon
-Won 3 seats in the Senate and one seat in the House
-The NXT currently hold the balance of power in the Senate and in February of this year
blocked the government’s $4billion childcare and welfare omnibus bill
-The quota for South Australia is 81,000 votes in comparison to NSW which is 345,000 votes

Safe Seats
-Parties are less likely to pay attention to seats that they are guaranteed to win
-An established tendency to vote for a political party can distance a candidate from the

t
en
electorate as the electorate is more concerned with the party.
eg. Curtin WA
m
-The electorate of Curtin has been voting liberal since its inception in 1949 and is currently
cu
occupied by Julie Bishop but had been occupied by 3 previous liberal candidates.
HOWEVER
Do

eg. Sophie Mirabella in 2013 lost her safe seat of Indi in Victoria to an independent Cathy
McGowan after Tony Windsor nominated her for ‘the nasty prize’ when asked who he would
miss the least in politics.
p

-Mirabella was the only sitting Liberal Member to loose her seat
wa

Partisan Politics: Above the Line Voting, GTV

ks

-When voters choose the party rather than the individual it will distance the candidates from
in

their electorate
Th

eg. 90% of voters choose to vote above the line

eg. This was abused in the 44th Parliament when Jacqui Lambie despite winning a majority of
her votes through Above the line voting decided to depart from the Palmer United Party and
became an independent.
-Lambie’s vote was instrumental in blocking the ABCC bill which was the trigger for the
double dissolution election.

100
Accountability Through Privileges Committees

Committees
Parliamentary Committee- A subset of parliamentarians formed into a group for a particular
specialisation. They can be House Committee (HR only), Senate Committees (Senate only)
or Joint (both houses). They are play important role in the legislative process, accountability
and debate functions.
Standing Committee- A parliamentary committee which endures the life of a Parliament.
Disbanded upon GG’s dissolving of Parliament prior to an election.
Select Committee- A parliamentary committee formed for a specialised purpose. Disbanded
once it reports to Parliament.
Privileges Committee- A parliamentary committee formed in each house which holds the
MHRs and Senators to account for their conduct and use of parliamentary privilege. Eg.
House Standing Committee of Privileges and Members Interests
Parliamentary Privilege- An enhanced form of freedom of speech enjoyed by all members of
parliament when they are on the floor of their chamber and when their chamber is in session.
It protects members of parliament from criminal or civil liability for comments they may

t
en
make in parliament. Essential for debate members may be held to account for the misuse of
parliamentary privilege by the privileges committee of the house in which they sit.
m
Privileges Committee Procedure- Any member of the Commonwealth parliament must
cu
complete register their financial and business interests on a members interest register (run by
committees in both houses) and must also declare any gifts they have received as a member.
Do

Copies of registers can be found on the parliament house website and also at a public website.
Right of Reply- Citizens who wish to make a response to comments made about them in the
House of Representatives or in the Main Committee may make a submission to the Speaker.
p

Unless the Speaker considers that the subject is obviously trivial or that the submission is
wa

frivolous, vexatious or offensive, the Speaker must refer the submission to the Committee.
The Committee of Privileges and Member’s Interests must consider the submission. The role
ks

of the committee is to recommend whether a response, in terms agreed between the person
in

and the committee, should be published. The committee may confer with the applicant, and
the Member involved, but it may not consider or judge the truth of any statement made in the
Th

submission or in the House.

-In effect the same process happens with the Senate committee and nothing happens or a
response by the person is published by the Senate or incorporated in Hansard.
Code of Conduct- A set of principles and expectations that are considered binding on any
person who is a member of wither house of parliament. Currently there is no Code of
Conduct for Senators and Members of the House.

The House of Representatives Standing Committee of Privileges and Members’ interests and
the Senate Standing Committee of Privileges demonstrate one avenue through which
parliament can be held accountable for its actions.

101
Types of Committees
House- Standing Committee of Privileges and Members’ Interests
The Committee of Privileges and Members’ Interests is appointed to:
-Inquire into and report on complaints of breach of privilege or contempt which may be
referred to it by the House under standing order 51 or by the Speaker under standing order
52, or any or related matter referred to it by or in accordance with a resolution of the House
-Inquire into an report on the arrangements made for the compilation, maintenance and
accessibility of a Register of Members’ Interest
-Consider proposals by Members and others on the form and content of the Register of
Members’ Interests
-Consider specific complaints about registering or declaring interests
-Consider possible changes to any code of conduct adopted by the House; and consider
whether specified persons (other than Members) ought to be required to register and declare
their interests.
Senate Standing Committee of Senators’ Interests
-The Committee oversees and reports on the registration of senators’ interests, undertaken in
accordance with relevant resolution of the Senate.

t
en
-Interests are principally disclosed by way of statements of interests, supplemented by forms
disclosing alterations of interests from time to time.
Senate Standing Committee of Privileges m
-The Senate Standing Committee of Privileges inquires into and reports upon matters of
cu
privilege referred to it by the Senate.
Do

Role of the Committee

Standing order 18 provides:
-A Committee of Privileges, consisting of 8 senators, shall be appointed at the
p

commencement of each Parliament to inquire into and report upon matters of privilege
wa

referred to it by the Senate

-The committee shall have power to send for persons and documents, to move from place to
ks

place and to sit during recess

-The committee shall consist of 8 senators, 4 nominated by the Leader of the Opposition in
in

the Senate and 1 nominated by a minority party and independent Senators

Th

-The committee shall elect as its chair a member nominated by the Leader of the Opposition
in the Senate
-The committee’s main function is to investigate conduct which is apprehended to obstruct
the work of the Senate. The committee does so only when it receives a reference from the
Senate. This may involve allegations of interference with the functions of the Senate or its
committees, or with senators undertaking their duties. The committee undertakes this work in
accordance with the Senate’s Privilege Resolutions.
-The committee has often cited the protection of the Senate’s sources of information-
particularly of witnesses before committees- as its highest duty, and this will commonly
involve protecting witnesses interference or penalty.
-The committee also administers the ‘right of reply’ procedure, provided in Privilege
Resolution 5, when such matters are referred to the committee by the President.

102
Abuse of Parliamentary Privilege
Derryn Hinch
-Named paedophiles in the Senate despite laws that prohibit this
-“I want to take this opportunity and deliberately use parliamentary privilege to tell you a
horror story and a failing of our legal system that scandalously suppressed- and continues to
suppress- a serial rapists name and whereabouts”
Terry Butler
-Member for Griffith
-Had a defamation case brought against her which was settled out of court
-Butler then made further comments in Parliament about this matter on the 28 th November
2016
-Calum Thwaites issued a right of reply
-The committee did not take any further action against Butler
Craig Thomas
-43rd Parliament
-Prior to election he was the National secretary of the Health Service Union (HSU), during
this time he had misused the HSU’s credit card to purchase hotel accommodation and escort

t
en
services
-During his time in Parliament Fair Work Australia investigated him and this was tabled in
the Senate on the 7th May 2012. m
-On 21st May 2012 Thomson made a statement to the House of Representatives professing
cu
his innocence and naming members of the HSU over a conspiracy to ‘set him up’ it was this
Do

speech that breached the standards of parliamentary privilege.

-Following criminal proceedings Thomson was found guilty and the Commonwealth
Parliament issued a motion of regret and apologised to the individuals that had been named in
p

his speech
wa

-The Committee also investigated his use of Parliamentary privilege and found that an
appropriate punishment would be for the House to ‘reprimand’ Mr Thomson for his conduct
ks

-Thomson was a member of this committee during this time

Hugh Mahon
in

-Member for Kalgoorlie WA

Th

-In 1920 PM Billy Hughes successfully moved for his expulsion from the House forcing a by
election
-Mahon was not re-elected
-Neither the House nor the Senate have the power to expel members from the Parliament any
longer

103
Members Interest Examples
Michaelia Cash
-Agreed to purchase a $1.4million investment property in Perth on November and settlement
occurred on December 9
-The property was not added to Senator Cash’s register of interests until January 21 and an
extra mortgage to finance the mortgage was not registered until February
-Politicians must update their register of interest within 35 days and may be accused of being
in contempt of Parliament should they knowingly fail to disclose purchases
-PM said he was disappointed by the oversight and he had accepted her apology
-“The public hold us to very high standards and we have to comply with them.”
David Feeney
-Failed to declare a $2.3 million house on his parliamentary register of interests, with his
office claiming that it was an oversight
Tony Abbott
-Criticised for changing his mortgage provider and not updating his pecuniary interest
register for two years

t
en
m
cu
Do
p
wa
ks
in
Th

104
Accountability through Parliamentary Procedures and Processes

Standing Orders
-Standing Orders are the rules governing the conduct of all the business of the House of
Representatives and the Senate
-The Standing Orders govern conduct, orders of business, how motions are made and voted
on, the passage of bills, how to address the Speaker of the House or President of the Senate
-They spell out the procedures and processes for everything that goes on in each chamber and
its committees.

The Speaker and the President

-The Speaker in the House of Representatives and the President of the Senate are the
presiding officers in each house
-They enforce the Standing Orders in their particular chamber
-Parliamentarians are bound by the Standing Orders and subject to the interpretations and
rules of the Speaker or President

t
-During parliamentary sittings heated exchanges do occur, arguments erupt and the behaviour

en
of parliamentarians may be out of order
-Any parliamentarian may refer a matter to the Speaker or President
m
-Such ‘points of order’ require the presiding officer to interpret the Standing Orders and
cu
make a ruling
-The Procedural Digest contains the rulings of the Speaker, any new precedents set and any
Do

unusual situations. The Senate has an equivalent process. This digest is published every week
or fortnight.
p

-The Speaker and the President may caution and warn members or Senators about their
wa

behaviour during debate, Question Time or other sessions. If the parliamentarian persists in
their contempt of the Standing Orders or the rulings of the presiding officer, then they may be
ordered from the chamber for a period of time.
ks

Conduct of the Speaker and President

in

-The Speaker in Australia is a political appointment

Th

-The house appoints the speaker by a vote, one which the government will always win
-Australian speaker are open to partisan influence
-The individual character of the Speaker is a major factor in how they do the job of presiding
over the House
eg. Partisan bias was a feature of the Speakership of Bronwyn Bishop during 2013-15 when
she ejected approximately 400 MHRs from the House under Standing Order 94A; of these
only three were from the government side.
eg. Harry Jenkins was the Speaker (2007 -2011) of the 42nd and 43rd Parliaments. He was
well respected by both sides and is regarded as an impartial speaker, a motion of confidence
in the Speaker passed with bipartisan support.
-The Senate is a more independent chamber, usually free of dominance by the executive
government.
-In order to become President consensus is needed in the House. Thus Presidents are more
open and impartial.

105
Order of Business
-The Senate runs its daily routine by the Order of Business (called the Red) and the Notice
Paper
-It is the agenda of the Senate for a particular day
-Senators wishing to participate in debate, move motions or take part in other formal
proceedings must have their name entered on to the Notice Paper
-The House has an Order of Business and Notice Paper equivalent to that of the Senate
-The Speaker runs the business of the House by them

Accessing Accountability by Procedures and Processes

Standing Orders
-Provide sanctions for breaches of the rules.
eg. Standing Order 94A ‘Sanctions against disorderly conduct’ outlines Speaker ability to
eject members of parliament who are acting in a disorderly manner
-94A deals with the ability of the speaker to direct a member to leave, however 94a-f deals
with other measures that the speaker can take against a member.
-Standing orders ensure that Parliament can function. They guide proceedings and define

t
en
processes.
eg. Standing Orders 64-72 outline Manner and the right of speech. Standing Order 65
outlines the rules for Members wishing to speak. m
cu
a) A member wishing to speak shall rise and when recognised by the Speaker, address the
Speaker. If a member is unable to rise, he or she will be permitted to speak whilst seated.
Do

b) When a Member is speaking, no Member may converse aloud or make any noise or
disturbance to interrupt the Member.
c) If two or more Members rise to speak, the Speaker shall call on the Member, who in the
p

Speaker’s opinion, rose first. If the speakers selection is challenged, a motion may be moved.
wa

-This ensures the accountability of the debate function

-The speaker and the President of the Senate enforce the Standing Orders, make decisions
ks

when someone asks them to make a judgement about the rules and deliver a sanction when a
in

parliamentarian seems to have broken the rules.

-The Parliament can only carry out its functions if there are due processes and enforceable
Th

rules
-There is a limitation on the effectiveness of Standing Orders. They may be suspended or
amended by a majority vote. Governments are therefor able to manipulate the Standing
Orders of the House of Representatives
eg. Standing Orders 90-93 deal with the ability of the government to amend standing orders
eg. In 2016 there were 30 amendments made to the Standing Orders
Hansard
-All debates in both chambers of Parliament and in committee proceedings are recorded and
the edited transcripts of these debates are published shortly after the chamber or committee
proceedings have concluded.
-Hansard provides accurate records of the debate that has taken place

106
Matters of Public Importance
-Allows members to speak in Parliament about current issues, if they have not been raised in
other debates in the chamber
-Limited effectiveness
eg. An MPI took place in the House on May 22 nd 2012 following Craig Thomson’s speech
the day earlier
-The debate was devoted to the issue of how the House was going to deal with the Member
for Dobell in light of the allegations against him and his statement made in the chamber
-There was a discussion of a possible censure as well as arguments for and against
suspending him from the service of the House
-Mark Dreyfus then cabinet secretary (ALP) warned against any action at that state in terms
of proper process as well as the presumption of innocence
eg. 2016 Senator Dastyari proposed to the speaker under standing order 75 that the senate
discuss the matter of The Prime Minister’s failure of leadership on economic policy

Other Committees
A parliamentary committee is a specialised subset of Members of Parliament. A committee

t
en
has a defined membership and a specific area of work to focus on.
How they promote accountability
-They scrutinise and debate legislation and issues m
cu
-Committee members seek to represent the public interest in legislation
-Take detailed submissions from the public, the public service, stakeholders and others into
Do

account and represent them in recommendations to Parliament

-Travel to regions in Australia to take into account local concerns representing them in their
recommendations
p

-Write detailed reports tabled in Parliament so that Parliament as a whole can review their
wa

suggestions
Joint Committee on Human Rights
ks

-To scrutinise all legislation for compliance with seven key international human rights
agreements to which Australia has agreed to be bound
in

-Holds the legislative function of the Commonwealth Parliament to account for compliance
Th

with human rights

-If a statute does not comply with the requirement of international human rights law the
committee will issue a statement of compatibility to notify the parliament
Scrutiny of Bills Committee
-Assessed legislation for its effect on rights, the rule of law and parliamentary proprietary
-Publishes reports to alert the Parliament of Bills it thinks are of concern

107
Accountability through Judicial Review

Reviewing the Constitutionality of legislation

-The power of the High Court to declare the Parliament’s statute laws ultra vires
-Statute law passed by the Commonwealth Parliament may not be constitutional unless it is
grounded in a constitutional head of power
-Heads of Power are the exclusive and concurrent legislative powers specifically granted to
the Parliament by various sections of the Constitution
-Striking down statutes is the ultimate accountability mechanism for the Parliaments
legislative function. The High Court is the most powerful check on the legislatives power.
eg. Williams No.2
-The High Court Struck down amendments to the Financial Management and Accountability
Act 1997 which authorised the payments of the National Schools Chaplaincy program funds
to the Scripture Union of Queensland as a ‘benefit to students’ under Section 51 (xxiiiA) of
the Constitution.
eg. Communist Party Case 1951
-Australian Communist Party v Commonwealth (1951) case

t
en
-Coalition introduced the Communist Party Dissolution Act 1950
-The Communist Party was declared to be an unlawful association, and, as such, was
m
to be dissolved, its property forfeited without compensation.
cu
-The Governor-General was authorised to declare bodies (such as trade unions)
communist affiliates. The Governor General could declare these bodies unlawful,
Do

satisfied that their existence was prejudicial to Australia’s security and defence
-The Governor-General was authorised to declare a person as a communist and
engage, in activities prejudicial to Australia’s security and defence. Effectively, such
p

a person could not be employed by the Commonwealth.

wa

-On March 9th 1951 the High Court by a majority of 6 to 1 rules the Communist Party
Dissolution Act 1950 unconstitutional
ks
in

Statutory Interpretation
Th

-Courts may apply maxims and rules of interpretations to adapt and change the meaning of
Acts so that they remain current and deliver just outcomes
-The demands for clarity and consistency ensure quality legislative work by the Parliament
-Courts provide feedback on statutes to the Parliament. It is hoped that this will encourage
parliament to write good statutes and the amend bad laws. They provide a very powerful
check on the legislative role of the Parliament.

108
Accountability of the Executive

The 3 executives

Constitutional Executive
The Queen/GG are the executive according to the constitution/theory.
o S61 Executive power
o S62 Establishes the federal executive council
o S64 GG can hire and fire ministers
o S68 GG is the commander in chief of the military
o S32 GG has the ability to dissolve the house and issue writs for the election of the
house
o S72 GG appoints Justices of the High Court and other federal courts
o S58 GG gives assent to laws. No law can be passed without the approval of both
houses.

t
en
Political Executive or Real Executive
Westminster conventions of Responsible Government.
o GG acts only on the advice of the PM m
cu
o Government is the party with the majority of seats
o The leader of that party becomes the Prime Minister
Do

o The government stays in power as long as it retains the confidence of the house-
defeats no confidence motions and retains its majority of seats.
p
wa

Public Servants
-Public servants are those employed under the Public Service Act 1999 and administer the
ks

law. Public Sector refers to those services that may be paid/funded by the government to
provide such services to the community that are not necessary. The may include private
in

firms.
Th

-Appointed unelected officials who provide administrative services to executive government.

Arranged into government departments and agencies and statutory authorities in administers
the laws of parliament. It is bureaucratic. It is accountable via the Westminster chain of
accountability to ministers in cabinet and through them to the parliament and the people. The
public service has considerable power in its own right.

109
Definitions
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.
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.
Westminster Chain of Accountability- The links between the people and those who execute
the laws that govern them. In theory, the people elect representatives to parliament.
Parliament forms the executive government (Cabinet) and holds it to account by the
Westminster Conventions of responsible government (individual and collective ministerial
resp, Question time etc). The ministers had portfolio responsibilities for government
department staffed by appointed public servants. Therefor; public servants are accountable to
their ministers, ministers are accountable to parliament, parliament is accountable to the
people this is the Westminster chain of accountability. Undermined by the size and
complexity of modern government and the decline of parliament and by the existence of
political advisors to ministers. These advisors are outside the chain of accountability, but can

t
en
to take the blame that should belong to a minister.

Individual Ministerial Responsibility m

cu
Conventions of Individual Ministerial Responsibility
Do

-Each Minister is responsible for his/her Department to Parliament and therefore indirectly to
the people.
p

eg. Tudge Centrelink

wa

-Ministers are responsible for their own actions

eg. Tudge, Hunt, Sukkar calling out Vic Supreme Court
ks

-The private interests of a Minister should not conflict with their Ministerial responsibilities.
Therefore;
in

-Ministers must be above suspicion of offence.

Th

-Ministers must be discreet. The must not be seen doing anything considered
unacceptable in the wider community (even if it is legal)
eg. Sussan Lay
-Must not be seen to use their position to their advantage or another individuals
advantage.

Ways in which Individual Ministerial Responsibility becomes more notable

-Censure by the House of Representatives- never successful directly- more likely an indirect
method
eg. Jamie Briggs behaved inappropriately with a female staffer
-Stuart Robert misrepresented himself on a personal trip to China, giving rise to accusations
of a conflict of interest
-Mal Brough implicated in wrongful behaviour over copying the personal diary of speaker
Peter Slipper.
ALL FORCED TO RESIGN

110
-Censure by the Senate- more likely in Senate but cannot enforce anything- more
embarrassment
eg. Senate successfully censured Senator George Brandis the Attorney General in the Abbott
and Turnbull Governments, in March 2015. The Senate does not have the effect of a lower
house censure as they lack the weight of Westminster convention. George Brandis was
strongly defended by Abbott and survived censure.

Censure of a Minister or Government by Senate

-Censure motions in the Senate against Ministers or the Government are now a relatively
common occurrence
eg. -The first successful Senate censure of a Minister occurred in 1973, when an amendment
expressing want of confidence in the Attorney-General (Senator Murphy) was agreed.
-13 September 1984 the Senate agreed to a motion of censure of the Minister for Resources
and Energy (Senator Walsh).
-Apart from motions censuring Senate Ministers, these have included motions directed at
House Ministers
-The passage of a censure motion in the Senate would appear to have no substantive effect.

t
en
However it may, depending on the circumstances, be seen as contributing to the
parliamentary and other pressures leading to a Minister’s resignation or dismissal.
m
cu
Collective Ministerial Responsibility
Do

Conventions of Collective Ministerial Responsibility

-A minister is responsible for a Cabinet decision if he/she does not resign
p

-Ministers must publicly agree on the fundamentals (main ideas) of Cabinet but can disagree
wa

on fine print. If a minister publicly disagrees on a fundamental they must resign.

-Ministers cannot just resist criticizing government policy. They must publicly support
ks

Cabinet policies. If they fail to do this they must resign.

-If Ministers disagree in public or criticize another Minister’s handling of a department they
in

are breaching CMR and must therefore resign from the Ministry.
Th

Ways in which Collective Ministerial Responsibility becomes more notable

-Motions of no-confidence against a government- this HAS NEVER BEEN SUCCESSFUL
IN THE HOUSE OF REPRESENTATIVES

Examples
While there has never been a successful vote of no confidence or censure of a Government in
the House of Representatives, on eight occasions Governments have either resigned or
advised a dissolution following their defeat on other questions.
eg. Scullin Ministry, 25 November 1931- The Governor-General accepted the Prime
Minister’s advice to dissolve the House after the question ‘That the House do now adjourn’
was agreed to 37:32, against the wishes of the Government.
eg. Fadden Ministry 3 October 1941- The Government resigned when during the Budget
debate in committee of supply, an opposition amendment to the effect that the first item in the
estimates be reduced by a nominal sum (1 pound) was agreed 36:33

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Senate Estimates and at least one other committee of the Commonwealth Parliament

Definition
A key part of the Senate committee system are the estimates hearings conducted by the eight
legislative and references committees. These are special sittings of the committees conducted
for four days in May with two days of optional additional hearings if needed.

Senate Estimates and Accountability

-Inquiries into government spending are an important accountability process in their own
right
-The narrow focus on expenditure formed the purpose of estimates hearings in the past
-The independence of the Senate and the lack of government control over the estimates
process have led to the evolution of much greater capacities to make wide ranging
investigations into all areas of government activity
-Modern Senate estimates can call Ministers and any public servant including any member of
the Senior Executive Service, the highest-ranking public servants.

t
-They can be asked almost any question related to the running of their departments,

en
government policy, controversial events and scandals and virtually anything else.

Examples
m
cu
-George Brandis
Do

-Senate Estimates Hearing called after Brandis did not offer a sufficient explanation to the
inconsistencies in the reports of his involvement with the Bell organization.
-Brandis has repeated his argument that he is not at odds with his West Australian counterpart
p

over when he was personally involved in litigation to claw back $1 bill from the failed Bell
wa

group of companies.
ks

Other Committees
Parliamentary Joint Committee on Human Rights
in

-Standing committee with the purpose of scrutinising all legislation and delegated legislation
Th

introduced into the Commonwealth Parliament for compatibility with the following seven
international covenants and conventions.
-Composed of 5 members of HoR and 5 Senators Ministers are ineligible to be members
-Publishes a report called a scrutiny report, to both houses of Parliament in each sitting week.
-Reports alert the parliament to any human rights concerns that the committee discovers
when it scrutinises Bills and executive government regulations
-Help to maintain the status of international covenants protocols and treaties by ensuring that
all Bills and regulation are assessed against the human rights standards that they establish.
Senate Regulations and Ordinance Committee
-The committee focuses on the following:
-That it is in accordance with Statute
-That it does not trespass unduly on personal rights and liberties
-That it does not unduly make the rights and liberties of citizens dependent upon
administrative decisions which are not subject to review by a judicial or other
independent tribunal
-That it does not contain matters more appropriate for parliamentary enactment
Role:
-To see that regulations, ordinances and instruments

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 -Are in accordance with the spirit of the statute even though legally authorised by the
statute
-Do not contain reversals of the onus of proof in criminal matters
-Do not infringe traditional civil liberties
-Do not allow for administrative decisions affecting rights and liberties without a right
of appeal to a judicial or other independent body by an aggrieved person
-Allow retrospectivity, particularly involving payment of monies with long periods of
retrospectivity. Retrospectivity conflicts with rule of law.
Senate Select Committee on a Certain Maritime Incident
eg. Investigation into the ‘child overboard’ refugee claims
-Senator Hill halted the investigation by refusing to allow certain members of the ADO to
appear as a witness claiming that it was a ‘confidential’ matter

Public Service
Public Servants are those employed under the Public Service Act 1999 and administer the
law. Public Sector refers to those services that may be paid/funded by the government to
provide such services to the community they are not necessary. They may include private

t
en
firms.

Public sector governance covers: m

cu
“…the set of responsibilities and practices, policies and procedures, exercised by an
agency’s executive, to provide strategic direction, ensure objectives are achieved,
Do

manage risks and use resources responsibly and with accountability.”

It also encompasses the important role of leadership in ensuring that sound governance
p

practices are instilled throughout the organisation and the wider responsibility of all public
wa

servants to apply governance practices and procedures in their day-to-day work.

ks

Public Servants are known as the Administrative Executive (the GG is the Consitutional, the
in

PM the Political Executive) because when it comes to administering the law and making
decisions about how to administer the law they are often the ones who have the true power.
Th

Role of the Public Service

-Ensuring the efficient administration of policy and legislation passed by parliament
-Developing and administering delegated legislation
-Providing policy advice to Ministers

Given that the Public Service is covered by the Westminster convention of responsible
government which means it is responsible to Cabinet, from there to Parliament and there to
the people. Because of this the Public Service is expected to be:
-Subordinate and inferior to the elected government
-Politically neutral and impartial ‘
-Providers of fearless and frank advice
-Under the direction of Ministers
In simple the public service has been expected to be “permanent, neutral and anonymous” as
it served its masters (Ministers).

Accountability of the Public Service through Senate Estimates

eg. Pezzullo and Quaedvlieg

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-Border security
-Forced checking of passports
-Minister not aware
-Called to Senate Estimates- bring to public attention- embarrassment for organisation and
Immigration Minister Peter Dutton

Commonwealth Auditor General and the Administrative Appeals Tribunal

Commonwealth Auditor General

Definition
Provide parliament with an independent assessment of selected areas of public administration
and assurance about public sector financing reporting, administration and accountability.
Accountability
Performance Audits- Inspection of the way a government department or agency carries out its
day to day business.
-AG advises Parliament about how public money is being spent and whether or not outcomes

t
are being achieved.

en
Financial Audits- Check the financial statements and records of a government department or
agency.
m
Assurance reviews- A check to ensure that a government department or agency is carrying
cu
out its responsibilities using the correct information.
eg. Sophie Mirabella, in 2016 election made a claim that her electorate had missed out on
Do

some $10 million of government funding for a hospital in Wangaratta when she failed to win
the seat at the previous election.
-Governments and Members of Parliament are not allowed to bribe voters for votes
p
wa

-Shorten ALP referred this matter to the Auditor General, stating that if Mirabella’s claim
was true it suggested potential political corruption.
-Auditor General acting as an officer of the Parliament; as an agent for its responsibility
ks

function
in

eg. Parakeelia, private IT company set up by the Liberal party to collect and create a database
of constituents in electorates.
Th

-Parakeelia costs Liberal MPs approximately $2500 a year to access this database
-Referred by Bill Shorten as a political donations issue in 2016
-The company has been donating over $1 million over the past few years
-The question at issue is the possible misuse of tax-payers money to fund a company which
then donates back to the government.

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Administrative Appeals Tribunal
Definition
Concerned with the accountability of the public service; the government departments and
agencies that make up the large bureaucracy we have previously described as the
administrative executive as well as Ministerial decisions.
Role
-The AAT reviews administrative decisions
ie. Any decision made by a government department or agency in the course of
carrying out law.
-AAT can only review administrative decisions where an Act or regulation says that it may
-The most common decisions it reviews include:
-Child support
-Worker’s compensation
-Welfare entitlements
-Migration and refugee visas
-Taxation
-Veterans entitlements

t
en
It also hears cases regarding:
-Citizenship
-Bankruptcy
-Aviation
m
cu
-Corporations
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-Customs
-Freedom of information
-Disability (under the new NDIS)
p

-Passports
wa

-ASIO security assessments (under anti-terrorism laws)

Accountability
ks

-A single dispute resolution tribunal with broad jurisdiction to review administrative

decisions, to change decisions as well as make recommendations, provides a powerful
in

accountability mechanism.
Th

-The AAT helps members of the public test, in an independent body, administrative decisions
affecting them to see that their public service has served them well.
eg. Kashkooli 2016
-Kashkooli was an Iranian citizen who was granted a refugee visa
-After arriving in Australia he committed two minor criminal offences
-Ordered to go to a police station for photographing and fingerprinting by failed to attend
-Convicted for shoplifting in August 2014
-In November 2014 he applied for Australian Citizenship but pre-dated his application to
May 2014, before his convictions and answered no to a question on the form asking if he had
any criminal conventions
-An official of the Department of Immigration and Border Protection made the administrative
decision to refuse his citizenship application based upon bad character
-Kashkooli applied the AAT to review the administrative decision.
-The AAT upheld original decision to refuse him Australian Citizenship
-The fact that the official’s decision was reviewed by the AAT shows they were held to
account.

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Judicial Review

Public Service
Judicial Remedies for administrative wrongs
Writs of mandamus
Definition: A court order requiring a public official to carry out a particular action.
-If a court finds that a government department or agency made a decision that was not in
accordance with the law it mat issue a writ of mandamus to an official of the government.
-Section 75(v) of the Constitution gives the federal judiciary this jurisdiction
-The court will interpret the relevant statute, declare its meaning and then issue the writ of
mandamus to force the government to obey the law.
-RULE OF LAW
Injunctions
-Courts may also issue prohibitions or injunctions to government departments and agencies.
-Writs which prevent certain actions
eg. 2016 the High Court issued an injunction against the Department of Immigration and
Border Control in the case of Plaintiff S99/2016 v Minister for Immigration and Border

t
en
Protection (2016)
-S99 was an African refugee who was raped and became pregnant
m
-S99 wished to have an abortion but the law on Nauru prohibits termination of pregnancies
cu
-The Australian government offered to send her to Papua New Guinea to have the abortion,
but S99 felt that due to her epilepsy PNG would lack the proper medical expertise to treat her
Do

properly
-The Australian government refused to allow her to have her abortion in Australia, leaving
her with the ultimatum of returning to Nauru or transferring to PNG.
p

-S99 sought an injunction in the High Court preventing an abortion in PNG and her transfer
wa

back to Nauru until the Federal Court could decide the final outcome
-The case was referred to the Federal Court which decided in May 2016 that the Minister for
ks

Immigration had exposed S99 to serious risk of medical harm and that the Minister also had a
in

duty of care to enable S99 access to a safe and legal abortion

Th

Cabinet Policy
eg. Williams No.1
High Court found that Section 61 (the power establishing the Commonwealth executive) did
not permit the government to fund the National Schools Chaplaincy Program (NSCP)
-This case helped define and limit the prerogative powers of the executive
Prerogative Powers: Actions the executive government can take without the approval
of parliament. Limited to those actions that the Parliament itself cannot pass a law to
enact. A declaration of war is an executive prerogative.
-In response the Gillard Government rushed new laws through Parliament to cover payments
under 427 grants and programs it could no longer fund without legislation
-The High Court decision led to the government legislating in Parliament under Section 51
(xxiiiA), the social services power
-Demonstrates the accountability of the executive as it shows how the court can keep the
legislation made by the parliament accountable by declaring in ultra vires.

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eg. Greg Hunt, Michael Sukkar and Alan Tudge- Contempt of Court
-Made inappropriate comments in relation to the Victorian Supreme Court, neglecting
separation of powers
-Contempt of court is an offence designed to protect the proper administration of justice and
uphold the court’s authority
-The three slimly avoided prosecution after issuing an apology to the court.
-Demonstrates executive accountability as the court is holding the three to account over
improper behaviour, Ministers cannot just behave however they want once they leave
parliamentary privilege.
***eg. Proposed High Court challenge to plebiscite

t
en
m
cu
Do
p
wa
ks
in
Th

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Accountability of the Governor-General

Accountability through Appointment

-The appointment of the GG is made by the queen under Section 2. The implication of S2 is
that the appointment of a GG and the assignation of their powers by the Queen is the formal
mechanism through which Governor-General should be held accountable.
-By convention, Queen Elizabeth II is bound to accept the advice of the Australian Prime
Minister as to the appointment of the Governor-General. Thus, they are able to appoint
people the position who uphold the values that the Government of the day would like to see
reflected in the Office of the Governor General.
eg. The selection of Sir Peter Cosgrove by PM Tony Abbott in March 2014. Mr Abbott
commented on the significance of Peter Cosgrove’s long military service, reflecting the
importance of conservative values to the Liberal Party.
-Oath of Office; swear to serve Australia’s monarch
-Oath of Allegiance
-GG issues proclamation assuming the Office

t
-Formal acceptance of the Office occurs on the floor of the Senate and is overseen by

en
the PM, the Presiding Officer of both Houses and the Chief Justice of the High Court
of Australia
m
The witnessing of the Oath of Office by the PM reinforces the importance of the
cu
GG being accountable for their actions
Do

Accountability through tenure and removal

-The tenure of the governor General is at the pleasure of the Queen, though a typical
p

commission lasts for 5 years. The constitution sets remuneration for the GG at 10,000 pounds
wa

unless otherwise determined by the Parliament.

-Queen may choose to recall or dismiss a GG before their term is complete only on
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advice by the PM
-This has never occurred in Australia’s history. There is some questions as to how
in

quickly the Queen may choose to act on such advice from the Prime Minister.
Th

-The closest was during the 1975 crisis

-S4 enables the Queen to appoint an administrator to carry out the role of the GG in the event
of a vacancy
-Only 3 Governor-Generals have resigned during their term of office
-Lord John Adrian Louis Hope
-Peter Hollingworth
-Sir John Kerr

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1975 Crisis
What happened- November 11 1975 Whitlam government dismissed by Governor General
Sir John Kerr
-After dismissal Whitlam appointed Malcolm Fraser (opposition leader) as a temporary PM
on the condition that he call an election at the earliest convenience.
How did it occur- The Whitlam government had lost control of the Senate through the loss of
two Labor Senators who were not replaced by Labor appointees (S15) as was the convention.
-Senate now Hostile to Whitlam government, which was manifested in the refusal to pass the
Supply Bill needed to allow the commonwealth to draw money required to cover the normal
expenses of government
By convention the Senate is expected to pass Supply Bills even when the
government does not correspond to the balance of power in the Senate
-The constitution states in S83 that no money can be drawn from the treasury unless passed
by law and S58 states that no law can be passed without the approval of both houses
How did the GG justify his action- Section 64 grants the governor general the reserve power
to Dismiss a prime minister if he/she has acted unlawfully
The Senate’s refusal to pass the supply bill is a motion of no confidence

t
en
-Section 15 meant that casual vacancies in the senate were not filled by Labor representatives
hence causing hostility in the senate.
m
What conventions were smashed- That the governor general make no political decision
without the approval of the prime minister.
cu
GG Resignation- The use of reserve powers available to John Kerr by virtue of the fact that
Do

he held the Office of the Governor-General was extremely controversial

-From the point when Kerr dismissed Whitlam he was held accountable by the people
-It was in the court of public opinion where rightly or wrongly Sir John Kerr was held
p

accountable. In the months leading up to the double dissolution election Kerr was denigrated
wa

by the supporters of Whitlam and the ALP in the hope of increasing support for the Labor
Party
ks

-Personal attacks against Kerr and his wife

-It was clear to all that it would be untenable for Sir John to continue in the role. Sir John
in

Kerr resigned from his commission as Governor-General in Dec 1977 only 3 years into his
Th

term of service.

Hollingworth Affair
-Previously held the position of the Archbishop of Brisbane
-Commissioned as GG in 2001 on recommendation of John Howard
-In 2003 allegations arose that whilst Hollingworth held the position of Archbishop he had
covered up allegations of child sexual abuse within the Anglican church
-It was the court of public opinion that made it untenable for Dr Hollingworth to continue in
his position of GG
-The campaign calling for Hollingworth to resign was led by Hetty Johnston, an advocate for
child sex abuse victims
-Hollingworth admitted that he had lacked the experience to handle the matter and in an
interview on the ABC program ‘Australian Story’ he almost appeared to blame the 14 year
old victim in one case stating that “my belief is that his is not child abuse”
-In 2003 a report investigating the handling of abuse allegations in the Church during
Hollingwoth’s time as Archbishop was tabled in the Queensland Parliament
-Senior members in the Cabinet including Deputy PM John Anderson and Treasurer Peter
Costello suggested that Hollingworth should reconsider his position

119
-On 11 May 2003 Hollingworth stepped aside as GG after a meeting with OM Howard while
the allegations of rape against him were investigated
-Hollingworth was forced to resign in response to public pressure on 25 May 2003

Accountability and the courts

-Kline v Official Secretary to the Governor General (2013)
-This case involved a request on the part of Ms Kline to documents held by the Official
Secretary to the GG with respect to the Order of Australia
-The request was under Section 6A(1) of the Freedom of Information Act 1982 which
required that the requested documents “relate to matters of an administrative nature”
-The Official Secretary denied access to the document on the basis that they were not of an
“administrative nature”
-Kline appealed the decision to the Australian Information Commissioner who affirmed the
decision of the Official Secretary
-She then appealed the decision to the Administrative Appeals Tribunal (AAT) which also
supported the position of the Official Secretary
-Kline then made an appeal to the Federal Court and as a last resort Ms Kline was granted

t
en
special leave to have the case heard in front of the High Court of Australia
-Ultimately the High Court denied access on the basis that documents relating to the
m
substantive powers or functions of the GG were not subject to the operation of the FOI Act
cu
s64A(1)
-The court found that the documents requested by Ms Kline were not of an
Do

administrative nature
-The case of Kline v Official Secretary to the Governor General (2013) clearly illustrates that
Australia is a country which respects the rule of law and that the actions of those within the
p

Office of the Governor-General can be challenged within the court system.

wa
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in
Th

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Accountability of the Courts

Appeals
-Superior appellate courts have judges with a higher level of expertise and experience and the
power to reverse a lower court’s original decision
-Whenever a judge makes a decision they must give a fully detailed explanation in their ratio
decidendi
-The reasons are then published on that particular court’s website and in law reports
-Public availability of judicial decisions may result in either public and/or media scrutiny
-Only supreme and high court
-Need qualification to receive district court decisions
-Public confidence in the justice system is increased if justice is ‘not just done but seen to be
done’
-Ratio decidendi is available for examination by appeals courts
-Powerful check on the quality of the original decision and the capacity of the judge
who made it

t
-Individual judges whose decisions are reversed regularly will suffer damage to their

en
reputation and may lose promotional opportunities to higher courts
-“Appeals impose scrutiny and accountability on lower court and their magistrates and judges
within a court hierarchy” m
cu
eg. Al Jrood v The State of Western Australia [2016] WASCA 73
-Reversed the sentencing decision of magistrates court
Do

-Claiming that his ‘good character’ justified a shorter sentence

p

Attorney General
wa

A Minister in Cabinet with responsibility for the judicial and court systems.
-The Commonwealth and each State and Territory government each has an Attorney General
ks

-Cannot directly interfere with the court’s processes, they do make recommendations for
judicial appointments and promotions. They are also responsible for the funding and support
in

of the judicial system within their jurisdiction.

Th

-Attorney General’s main job is to defend the judiciary, which means supporting it so that is
can function properly.

The final court of appeal: The High Court

-Ultimate appellate jurisdiction by S73 of the Constitution
-The High Court has discovered miscarriages of justice and reversed decisions that have led
to significant reforms within other Australian courts hierarchies
eg. Andrew Mallard
-Convicted by the Supreme Court of murder in 1994
-High Court quashed the original conviction in 2005
-Resulted in a reform to the appeals process and the establishment of a separate Court of
Criminal Appeal in WA
eg. Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52
-Sleeping judge
-NSW District Court
-High Court claimed that the trial was flawed and a miscarriage of justice had occurred and
ordered a retrial

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Limitations of Appeals
-Appeals can require special leave. Not always granted.
-Appeals often require legal representation which can be costly and thus may not be
undertaken, thus reducing accountability of lower courts.
-Time can be an issue this an appeal may not be pursued.
-The quality of legal representation may affect the quality of the appeal and thus mitigate the
potential for accountability.
-High court decisions are not able to be appealed.
eg. Tasmanian Dams, 4-3 decision in the High Court. The decision came down to one person.

Parliamentary Scrutiny and Legislation

Parliamentary Sovereignty
-The concept that the parliament is the representation of the sovereignty of the people. It is
the principle upon which parliamentarianism is based. In a pure sense, the parliament should

t
be subject to no authority other than the people themselves, not even past parliaments.

en
eg. Marketing of Potatoes Amendment and Repeal Bill 2016, reversed the decision of the
Galati Nominees PTY v The Potato Marketing Corporation of Western Australia [2016]
WASCA 27 which served an injunction against Galati.
m
cu
eg. Mabo v Queensland [No 2] [1992] 175 CLR 1
-Native Title Act 1993 The act recognized the existence of native title in certain
Do

circumstances.
-Refined and clarified the court’s decision
p

eg. State Government Insurance Commission v Trigwelll and Others [1979] HCA 40
wa

-Rogue sheep
-Farmer taken to court for not keeping fence in good keeping
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-HCA decided farmer not guilty of negligence

-Wrongs (Animals Straying on Highways) Act 1984 Victorian Parliament
in
Th

Mandatory Sentencing
-Rehabilitation, retribution, deterrence and community protection are four arms of the aims of
aims of sentencing
-Mandatory sentencing laws provide a good example of courts being held to account by
Parliament for not sentencing criminals according to community expectations
eg. R v Bayley 2013 it is argued that this case could have been prevented if there was a
mandatory minimum for his prior 8 convictions which would have meant that he was
incapacitated from committing crimes during this time.
eg. Assaults against WA police officers have dropped by 33% since the introduction of
mandatory sentencing to protect police and other public officers
eg. R v Loveridge (2013) charged 4 years imprisonment for one punch assault parents felt
sentencing was too lenient Mandatory Sentence for one punch laws include an 8 year
minimum sentence for fatal one-punch assaults where alcohol or drugs are a factor

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Parliamentary Scrutiny
Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012
-Provides parliamentary commissions the ability to investigate allegations of judicial
misbehaviour or incapacity for related purposes. This enshrines accountability as it provides a
mechanism to check the behaviour of Judges.

Limitations of Parliamentary Scrutiny and Legislation

Independent Judiciary- The quality of being free from interference or influence from others.
An essential feature of the judicial arm of government required for the rule of law.
Independence is a critical requirement for accountability.

Transparent processes and public confidence

Due Process and ‘natural justice’

-The adjudicator (judges and juries) must be impartial
-Each side must be able to present their case

t
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-Decisions must be based on evidence
-Hearings must be open and transparent except in exceptional circumstances
m
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Nemo iudex in causa sua: No one should judge their own case
-Judges are independent and impartial
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-They must remove themselves from a trial if there is a conflict of interest

-A biased judge or jury can be grounds for appeal
-If proven an appellate court will reverse the original decision, quash it or order a
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retrial
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Audi alteram partem: Hear both sides

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-Pre-trial and trial processes are designed to give equal opportunities to both parties to
in

present their case

Th

-Each may call witnesses, submit evidence, interrogate the other sides’ witnesses,
submit evidence and test the others evidence under cross examination
-In civil pre-trial plaintiffs make statements of claim and defendants address these
accusations in statements of defence
-Each side may pursue evidence during further and better particulars through
interrogations and discovery of documents
-Each side has identical opportunities to gather and present evidence
eg. Lloyd Rayney v State of Western Australia (2015) “The plaintiff should not be
expected to guess which items of evidence are relied upon by the defendant to justify
the statement at any relevant time” Justice Chaney
-In criminal pre-trial the accused has a right to know what they are being charged with and
the evidence against them
-The right to silence ensures the accused does not have to contribute to the case of the
prosecution
-The primary responsibility of the judge is to uphold these processes and to ensure procedural
fairness
-If a judge should fail in their duty to ensure a fair trial then there may be grounds for appeal
-An appellate court may reverse the original decision, declaring it unsafe, or order a
retrial

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Evidence based decisions
-Strict rules of evidence
-Rules are designed to ensure that only evidence of the highest quality is admissible and used
in the search for the truth
-Inadmissible evidence may include; hearsay, opinion, irrelevant and circumstantial evidence
-Parties may object evidence if it falls outside of the rules and the judge will rule whether the
evidence is admissible or not
-Only evidence that has survived being tested in court and is found to be admissible may be
used by a judge or jury in making their final decision

Public Hearings
-All court proceedings are open to the public and media with few exceptions
-Judges may decide to conduct hearings in camera (out of view) for vulnerable witnesses
such as children or to protect sensitive information
-Court reports are published in newspapers and online
-Most courts have a public viewing gallery

t
en
-Openness ensures that the public can have confidence in the administration of justice and the
courts and judges who administer it
m
cu
Public Confidence in the Courts
For Against
Do

Judges never have to appeal to populism to Complex jargon

keep their jobs
p

Judges don’t have to compete with other Obscure processes

wa

judges for their jobs

Security of tenure in S72
ks

Court procedures are centuries old and Time consuming

based on traditions that have stood the test
in

of time
Th

Severe backlog in cases coming before the

courts causing delays
Inadequate legal representation
Cost of legal representation

-Judges and courts are trusted because they are impartial and independent- they have integrity
-Judicial integrity is fundamental to public confidence
-Chief Justice Wayne Martin: “Because delay is a kind of denial” (2014) expands upon the
legal maxim “Justice delayed is justice denied”

Censure and Removal of Judges- Section 72

Censure
Sacking a judge is the ultimate sanction and one that could threaten the independence of the
courts. It is codified in the constitution and strictly limited. It is also codified in superior law,
at the state level.
Section 72 provisions:
-The executive appoints judges

124
 “Shall be removed by the Governor-General in Council”
Express power of the GG
-Judge’s pay cannot be reduced
-Both houses of Parliament must approve of the removal of a judge but only on the
grounds of “proved misbehaviour or incapacity”
“shall not be removed except by the GG in Council, on an address from both Houses
of Parliament in the same session, praying for such removal on the ground of proved
misbehaviour or incapacity”
Section 72 provides for both judicial independence and accountability
-Independence is guaranteed by protecting judge’s pay and by balancing the
appointment and removal process between the other two arms of government
-Accountability is achieved by granting parliament the ultimate power to remove a
judge.
-Independence is further guaranteed by limiting the removal only to “proved
misbehaviour or incapacity”. Parliament cannot remove a judge for any other reasons.
-Intentional lack of clarity means that debate is essential
-Possibility for High Court challenge

t
en
-When an arm of government can sack a judge there is a potential threat to the independence
of the judiciary. Threat to the rule of law.
-Federal judge has never been sacked m
cu
Justice Lionel Murphy
Do

-Appointed by the Whitlam Government to the High Court

-Accused of perverting the course of justice in 1984
-Senate committee was established which eventually led to recommendations that Murphy be
p

prosecuted
wa

-Found guilty by NSW Supreme Court of attempting to pervert the course of justice, later
reversed by Appeals court
ks

-Special Parliamentary Commission of Inquiry into Justice Murphy’s fitness to be a High

Court justice
in

-14 allegations thought worthy of further investigation

Th

-Murphy diagnosed with cancer

-Inquiry disbanded
-Had Murphy not become terminally ill the Parliamentary Commission of Inquiry may have
recommended to remove him on the grounds of proven misbehaviour

Justice Angelo Vasta

-Removed by the Queensland Parliament following the Commission of Inquiry into Possible
Illegal Activities and Associated Police Misconduct (the Fitzgerald Inquiry)
-Queensland Parliament set up a commission of inquiry led by former High Court Chief
Justice Sir Harry Gibbs to investigate the allegations made in the Fitzgerald Inquiry
-Vasta accused of wrongdoing in relation to a company that was associated with his family,
his wrongdoing did not affect his decision but it was found to be misconduct
-Removed from office in June 1989
-Only superior court judge to be removed from office in the 20th Century. None have been
removed in the 21st Century.

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Australia and the Protection of Human Rights

Definitions

Human Rights
Human rights are customs, practices and laws that have developed over centuries to protect
people, races, groups and minorities from oppressive governments. They are based on the
principle that all members of the human race are equal. These rights belong to all people
simply because they’re human beings.

Charter
The grant of authority or rights, stating that the granter formally recognises the prerogative of
the recipient to exercise the rights specified. It is implicit that the granter retains superiority
(or sovereignty), and that the recipient admits a limited (or inferior) status within the
relationship, and it is within that sense that charters were historically granted, and that sense
is retained in modern usage of the term.

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Treaty
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An agreement under international law entered into by actors in international law, namely
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sovereign states and international organisations. A treaty may also be known as;
(international) agreement, protocol, covenant, convention, exchange of letters etc. Regardless
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of the terminology all of these international agreements under international law are equally
treaties and the rules are the same.
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Protocols
International law and international relations are generally a treaty or international agreement
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that supplements a previous treaty or international agreement. A protocol can amend the
previous treaty or international Parties to the earlier agreement are not required to adopt the
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protocol; sometimes this is made clearer by calling it an “optional protocol”, especially where
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many parties to the first agreement do not support the protocol.

Covenant
A signed written agreement between two or more parties (nations) to perform some action.

Types of Human Rights

Cultural Rights
Protect the traditions which have been passed down from generation to generation within a
society. They focus on groups such as religious and ethnic minorities and indigenous
societies that are in danger of disappearing. Cultural rights include a group’s ability to
preserve its way of life, such as child bearing, continuation of language, and security of its
economic base in the nation, which it is located.

Social Rights
Rights made by a group of people to protect and maintain a social order (or the relationships)
within a society. These are rights that allow you to interact with others in your society to the
standard of a normally civilised person. These rights usually take legal action to bring them
into force. They require governments to act, not to refrain from acting. ‘

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Civil Rights
Protect individuals’ freedom from infringement by social organisations and private
individuals. They include the ensuring of peoples’ physical integrity and safety; protection
from discrimination on grounds such as physical or mental disability, gender, religion, race,
national origin, age or sexual orientation; and individual rights such as freedoms of thought
and conscience, speech and expression, religion, the press and movement.

Political Rights
Protect individual’s freedom from infringement by governments. They include natural justice
(procedural fairness) in law, such as the rights of the accused, including the right to a fair
trial; due process; the right to seek redress or a legal remedy; and rights of participation in
civil society and politics such as freedom of association, the right to assemble, the right to
petition and the right to vote.

Economic Rights

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Rights related to the ownership of resources. They include the right to work, the right to the

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free choice of employment and to just and favourable conditions of work; the right to form
and join trade unions: the right to strike; the right to social security; and the right to own
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property. Contrary to civil and political rights, which are immediately applicable and
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essentially based on the prohibition of States from doing something, economic rights tend to
be considered as requiring States to take action, usually in the form of specific legislation,
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policies or programmes, so those rights can be realised.

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Positive and Negative Rights

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Rights considered negative rights may include civil and political rights such as freedom of
speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a
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fair trial, freedom from slavery and the right to bear arms. Rights considered positive rights,
may include other civil and political rights such as police protection of person and property
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and the right to counsel, as well as economic, social and cultural rights such as public
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education, health care, social security and a minimum standard of living. In the “three
generations” account of human rights, negative rights are often associated with the first
generation of rights, while positive rights are associated with the second and third
generations.
Negative Rights examples
eg. Right to life, which ensures freedom from anyone including government, killing or
injuring you.
eg. Right to Liberty, which ensures freedom from anyone arbitrarily depriving a person of
their freedom
eg. Right to Pursuit of Happiness, which ensures freedom from anyone stopping a person
choosing their own path in life, such as their livelihood and life choices.
Positive Rights examples
eg. Right to Education, obliges the government to provide universal free primary and
secondary education
eg. Right to Health, obliges the government to provide a minimum standard of universal
health care
eg. Right to be Treated Equally, obliges the government to make and enforce laws against
racial, sex, age, disability or other forms of discrimination.

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First Generation Rights
Emerged during the enlightenment period and are identical to negative rights. Prevent a
government from infringing upon the rights of citizens.

Second Generation Rights

Emerged in the 20th Century as Western societies became wealthier. They are the same as
positive rights. Oblige a government to act so that people’s rights are met.

Third Generation Rights

Have only recently emerged. Examples include; group rights, such as indigenous peoples’
rights to land, native title rights and right of cultural or religious minorities to maintain
traditional practices. Third generation rights do not easily fit into the positive/ negative
categories of rights. Can conflict with other rights.

Rights
Right are:

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Universal: They apply to all human beings regardless of any distinctions of race, ethnicity,

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religion, gender, age, disability, wealth or any other characteristic
Interdependent: For any right to be fully enjoyed all the rights must be enjoyed. You cannot
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have some without others. To breach any right diminishes all others.
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Indivisible: Rights cannot be ranked into an order of importance or only partially allowed.
The right to a decent standard of living is just as important as the right to life and the freedom
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to follow a faith.
Inalienable: You cannot separate a person from his or her human rights. The only exception
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is loss of rights by law. For example a person guilty of murder has seriously breached another
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person’s right to life. The law allows the guilty person’s right to liberty and freedom of
movement to be removed as a consequence. The reason is to protect other citizen’s rights and
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to rehabilitate and deter the offender from breaching other people’s rights in the future.
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How Rights are Protected in Australia

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Superior Law

Constitution
-Have special mechanisms of alteration which makes constitutional laws difficult to change
-Putting rights in a constitution make them very secure
-Legislative and executive arms of government cannot change constitution easily
-Constitutional rights tend to be political and civil rights
-Constitutional rights can be specified in writing or they can be implied if a judge deems that
the constitution suggests this

Advantages
-Difficulty of change makes specific rights entrenched in a constitution very safe
-Government policy cannot contravene constitutional rights
-Parliament cannot pass laws that infringe constitutional rights
-Judiciary is empowered by constitutional rights because it has the power to interpret them
-Judges have the power to adjudicate whether or not government policy or parliamentary
legislation breaches a constitutional right
-Constitutional courts can then strike down the policy or law

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-Judges may discover implied rights, within a constitution, thus keeping them up to date
without changing social values
-Rights can be implied by the meaning of the constitution without actually being written into
fundamental law
-Requires an activist approach to the interpretation of the constitution, judges must work out
implications made by words and not just the literal meaning
-Judicial supremacism

Disadvantages
-Constitutions are difficult to change
-Constitutional law has limited adaptive capacity
-To place rights in a constitution usually requires specific rights to be codified or written
-Results in a list of rights
-A list cannot be exhaustive, it only includes what is on a list
-Meaning that rights are ranked
-Judicial supremacism is a problem
-Constitutional rights give far too much power to unelected and unaccountable

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officials.
-Judges may strike down laws which they think are unconstitutional even though
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these laws represent the will of the people having been passed by representative
legislatures
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eg. Church of the New Faith v Commissioner of Pay-Roll Tax [1983] HCA 40.
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-Judicial supremacism
-Expanded the meaning of ‘religion’ under Section 116, giving it a far more flexible
meaning. Justice Anthony Mason and Gerard Brennan held
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“the criteria of religion [are] twofold; first, belief in a supernatural being, thing or
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principle, and second, the acceptance of canons of conduct in order to give effect to
that belief.”
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Express Rights
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Definition: Those rights codified in law, either constitutional or statutory.

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Section 41- The ability to vote in Commonwealth Elections if at federation persons had the
right to vote in State elections.
Section 51 (xxxi)- The right to just compensation for the compulsory acquisition of property
by the Commonwealth
Section 80- The right to trial by jury for federal indictable offenses.
Section 116- The right to freedom of religion
Section 117- The freedom from discrimination on the basis of State residence
Implied Rights
Definition: Those discovered in the Constitution by the High Court when it interprets the
Constitution. They can be controversial because they can alter the Constitution without the
authority of the people. Implied rights empower the judiciary because only judges discover
and interpret implied rights, which then bind all other institutions within the political and
legal system.
Implied immunities and prohibitions- These implications helped preserve the power of the
States, whose powers are residual and therefore non-justiciable
Implied right to vote- S7 and S24 both expressly state the Senate and the House of
Representatives shall be directly ‘chosen by the people’
-According to the High Court this phrase implies that the Constitution contains an implied
right to vote

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Implied right to political communication- Drawn from the democratic nature of the
Constitution.
-S7 and S24 it follows that there should be political communication and debate of the
arguments concerning the policies of the parties contesting the election.
eg. Nationwide News v Wills 1992- implied right to political communication
Leeth v Commonwealth 1992- Implied right of legal equality between the States
Roach v Electoral Commissioner 2007- Implied right to vote
MCloy v New South Wales 2015- Implied right to political communication
Bob Brown protest- Implied right to political communication

Statute Law
-Statutory rights may include political, civil, social, economic, cultural and some legal rights
-Statute law bounds governments and courts
-Do not bind parliaments since no parliament is bound by any previous parliament.
-Statute law must conform to constitutional law.

Advantages

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-Statute law is the most powerful form of law
-Parliament can pass and amend statutes at their will
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-New rights can be added and old ones can be amended or repealed
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-Doesn’t suffer the inflexibility of constitutional law
-Statutes may be interpreted by courts, so the same advantages of independent judicial review
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that we find in constitutional law applies to statutes as well.

Disadvantages
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-Statutory rights are less well protected than constitutional rights

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-Rights usually impose restraints or obligations on government

-Statutes are written therefor the same problem with listing occurs
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-Unelected judges are still empowered too much by statutory rights

eg. Tim Wilson, 18C
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• Second Generation Rights, rights infringing upon first generation rights

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-Section 18C makes it unlawful to “offend, insult, humiliate or intimidate” a person on the
basis of their “race, colour or national or ethnic origin.”
-Report made after students had been denied access to a computer lab in a centre that assists
the entry and advancement of indigenous students.
-Laws shouldn’t make offensive and insulting speech unlawful. All that does is invite
complainants to use the law as a weapon to resolve disputes better resolved through other
means.
-Impinging on the implied right of freedom of speech
eg. The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55
-The Australian Human Rights Commission considers that the fundamental human rights
principle of equality means that civil marriage should be available, without discrimination,
to all couples, regardless of sex, sexual orientation or gender identity.
-Marriage Equality (Same Sex) Act 2013
-The ACT legislated an allowance for same sex marriage
-Granting homosexual couples, the right to marriage equality
-This was deemed ultra vires by the high court as Section 51 (xxi) grants this power to the
Commonwealth

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Statute Laws that Protect Human Rights
-Racial Discrimination Act 1975
-Koowarta v Bjelke Petersen [1982] HCA 27
-Prevented a Queensland Government decision to stop an Aboriginal man John
Koowarta from purchasing a lease of land because he was aboriginal
-Sex Discrimination Act 1983x
-Disability Discrimination Act 1992

State Laws that Protect Human Rights

Gender Reassignment Act 2000- An act to allow the reassignment of gender and establish a
Gender Reassignment Board with power to use recognition certificates; to make
consequential amendments to the Constitution Acts Amendment Act 1899 and the Births,
Deaths and Marriages Registration Act 1998.

Common Law
-Judge made law made via the doctrine of precedent
-Inferior to statute law and can be overridden by Parliament

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-Common law binds the lower courts within a court hierarchy
-Does not bind parliament
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-Parliament can abrogate common law due to Parliamentary sovereignty
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Advantages
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-Common law rights are the most flexible

-Can evolve on a case by case basis
-Rights are built into the adversarial trial process, thus the courts are predisposed to protect
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rights
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Disadvantages
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-Vulnerability of common law rights to Parliament is its greatest disadvantage

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Common Law Rights

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-The right to a fair trial

-The right to the presumption of innocence
-The right to silence
-Right to access to the courts
-Immunity from deprivation of property without compensation
-Legal professional privilege
-Privilege against self-incrimination
-Immunity from the extension of the scope of a penal statue by a court
-Freedom from extension of governmental immunity by a court
-Immunity from interference with vested property rights
-Immunity from interference with equality of religion
-The right to access legal counsel when accused of a serious crime
-No deprivation of liberty except by law
-The right to procedural fairness when affected by the exercise of public power
-Freedom of speech and movement

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Examples
Mabo and Ors v Queensland [No 2] (1992) 175 CLR 1
-Declared that terra nullius was invalid
-Recognised the land rights of the Meriam people, the traditional owners of the Murray
Islands
WEAKNESS
-This was later followed by the Native Title Act 1993
-This legislation aimed to codify Mabo and implement strategies to facilitate the process of
recognising native title.
-The law imposed regulations upon the claiming of land under Native Title
-This exposes the weakness of common law as it can easily be reversed or amended by
statute.

Charter of Rights
Charter of Human Rights and Responsibilities Act 2006 (Victoria)
-The Victorian Parliament enacted the Charter of Human Rights and Responsibilities Act in
2006

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-Charter protects and promotes 20 basic human rights, mostly derived from The International
Covenant on Civil and Political Rights (ICCPR)
Summary m
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-The Charter requires the Victorian Parliament and all agencies of the Victorian executive
government, including the police, consider human rights when developing laws and policies
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-All laws passed by the Victorian Parliament must be checked against the Charter and a
‘statement of compatibility’, which informs how the law complies with human rights, must
be issued
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-The Victorian Parliament can still override the Charter, but it must explain why it is passing
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a law that does not meet the standards of the Charter- in other words, Parliament retains its
sovereignty. It is not bound by the Charter but is accountable to it.
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-The charter aims to be preventative rather than remedial- it sets out to prevent human rights
problems from occurring rather than providing from occurring rather than providing justice to
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those whose human rights have been infringed

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-In cases that come before the Supreme Court of Victoria, the Court may issue a ‘declaration
of inconsistent interpretation.’ A declaration requires the responsible minister to reconsider
the decision which caused the case. This places a burden of explanation on the executive.
-The Supreme Court of Victoria does not have the power to strike down a law which conflicts
with the Charter. Again, Parliament retains sovereignty.
Positive Outcomes
-Improvements in government service delivery
-Many disputes have been settled out of court using the Charter as a guide
-Fostering a positive human rights culture
-Increased awareness of human rights
-Government agencies include human rights training for their personnel
-Audits by the Victorian Equal Opportunity and Human Rights Commission, the agency
responsible for administering the Charter, which have led to improvements. For example
there has been improved treatment of women prisoners in Victorian jails.
Criticisms and Limitations
-Bills and Charters give too much power to judges
-Preserves the Parliament’s sovereignty by only requiring that the Parliament explain why
certain laws for not meet the standards set by the Charter

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-The requirement for explanation does not mean that the laws and decisions found to be
incompatible with human rights must be changed
-The Charter does not provide any remedies; it is focused on prevention.
-No person can bring an action to court using the Charter alone
eg. Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
-Castles was serving a prison sentence for social security fraud
-Prior to imprisonment she had been receiving IVF treatment in the hope of becoming
pregnant
-Requested that she be able to continue IVF whilst in prison
-Because of her age she would be ineligible to receive IVF once her release
-Department of Justice did not grant her request stating that prisoners do not have an
entitlement to this form of medical treatment
-Castles began a court action on the basis of Section 47 (1) (f) of the Victorian Corrections
Act 1986
-Because she was already bringing an action under the Corrections Act, Castles was also able
to that she had rights under the Charter of Human Rights and Responsibilities Act 2006 to
privacy and family to privacy and family (s13), equality (s8) and to humane treatment in

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detention (s22)
-The Court decided that prisoners must be treated humanely while in detention and that
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access to health care was a ‘fundamental aspect of human dignity.’
-The court ordered the Department to allow the applicant access to the relevant medical
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treatment, subject to an assessment of any countervailing security or other concerns on a
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visit by visit basis

Human Rights Act 2004 (Australian Capital Territory)

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-The ACT was the jurisdiction in Australia to pass a statutory bill of rights
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-Intended to create a dialogue between the Parliament and the courts about human rights
Summary
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-The human rights covered in the Act are civil and political rights. They come from the
International Covenant on Civil and Political Rights (ICCPR) and include 20 human rights.
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-The ACT legislative Assembly, a unicameral parliament, must review all potential
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legislation for compatibility with human rights

-A standing committee of the Legislative Assembly examines Bills that human rights
implications
-The ACT Attorney General must issue a ‘compatibility statement’ for each new law passed
by the Legislative Assembly
-For Bills that are not compatible the Attorney General must explain why
-Courts are required to interpret Territory statutes in a manner that is consistent with human
rights
-The Supreme Court of the ACT may issue a ‘declaration of incompatibility’ if a law is not
consistent with the Human Right Act 2004
-Establishes the Australian Capital Territory Human Rights Commissioner to review laws, to
educate about human rights and to provide advice to the Attorney General.
Positive Outcomes
-Made the ACT Parliament and Government aware it requires both the legislative and
executive branches of the ACT government to consider the impact of laws and policies from
a human rights perspective
Criticism and limitations
-Same criticisms
eg. Nona v R [2012] ACTA 55 the ACT Supreme Court

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-Nona charged with four offences and a warrant issued in 1998
-Warrant never carried out
-Summoned for trial in 2009, with the case actually commencing in 2012- some 14 years
after the issue of the original warrant
-Nona applied for a permanent stay of proceedings, which means that he applied to have the
case permanently set aside
-Application refused
-Argument for leave to appeal was that under the Human Rights Act 2004 he had a right to be
tried without ‘unreasonable delay’ and that 14 years was an unreasonable delay between
being charged and being tried
-Judge found that Nona had a right to appeal the decision not to grant a permanent stay of
proceedings
-“unlike the common law, the human rights jurisprudence makes it clear that the right to a
trial without improper delay is a free standing right.”
-This judgement helps us to understand how statutory rights, like the ACTs Human Rights
Act 2004 can improve upon existing common law rights- in this case the right to a timely trial
-The judgement only granted a leave to appeal DID NOT PROVIDE A REMEDY

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Do
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USA and the Protection of Human Rights

Constitution- Bill of Rights

Bill of Rights
-Specifies and codifies the fundamental rights of the citizens of the United States
-The Bill of Rights is a series of 10 amendments to the US Constitution made shortly after it
was declared

Arguments for
-Provides an inalienable protection of rights
Such rights include; freedom of speech, the right to bear arms and the right to silence.
eg. First Amendment Freedom of Expression
-Tinker v Des Moines Independent Community School District 393 US 503 (1969)
-Challenged the constitutionality of dress codes imposed within US schools
-A school had banned students from wearing arm bands
-A group of students had decided to wear black arm bands in order to protest involvement in

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the Vietnam War

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-The court’s 7-2 decision held that the First Amendment applied to public schools and that
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administrators would have to determine constitutionally valid reasons for any specific
regulation of speech in the classroom.
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Arguments Against
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-Alexander Hamilton, one of the primary advocates for a stronger constitution in the 1780s
debated the necessity for a Bill of Rights: “Bill of rights… are not only unnecessary in the
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proposed Constitution, but would even be dangerous.”

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-Too rigid, hard to change a constitution means that it is hard to adapt with the times
-Contained within Article 5 of the constitution
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-Amendments require passage by 2/3 of the House of Representatives AND 2/3 of the
Senate, followed by ratification of ¾ of the states
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eg. Bradenburg v Ohio 395 US 444 (1969)

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-Court upheld that government cannot punish inflammatory speech unless that speech is
“directed to inciting or producing imminent lawless action and is likely to incite or produce
such action.”
-Involved Clarence Bradenburg a Ku Klux Klan leader in Ohio, after a rally which incited
that the group would take revenge against “niggers” and “Jews” and those who supported
them
-Bradenburg was charged with advocating violence under Ohio’s criminal syndicalism statute
for his participation in the rally and for the speech
-Convicted and fined $1000 and sentenced to 1-10 years in prison
-The US supreme court reversed Bradenburg’s conviction, holding that government cannot
constitutionally punish abstract advocacy of force or law violation
eg. District of Columbia v Heller 554 US 570 (2008)
-The supreme court in a 5-4 judgement, upheld the right of Americans to own guns for
personal self defence, expanding the meaning of the Second Amendment
-The wording of the Second Amendment seems to be quite clear that gun ownership should
be in the context of common defence by a ‘militia’
-Thus demonstrating how judges have an extreme amount of power in the US

135
Common Law

Arguments For
Roe v Wade 410 US 113 (1973)
-Landmark decision by the Supreme Court on the issue of abortion
-The court recognised the right to an abortion as a fundamental right included within the
guarantee of personal privacy

Arguments Against
-Common law can place too much power in the hands of unelected and unaccountable judges

Statute Law

Arguments For

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-More flexible than constitutional law, it can be changed with the times

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Civil Rights Act 1964
-A landmark civil rights and US labour law that outlaws discrimination based on race, colour,
religion, sex, or national origin.
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-Protest movements like the Civil Rights movement led by figures such as Rosa Parks and
Martin Luther King Jr
Do

eg. Lau v Nichols 414 US 563 (1974)

-Supreme court case in which the Court unanimously decided that the lack of supplemental
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language instruction in public school for students with limited English proficiency violated
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the Civil Rights Act of 1964

-The court held that since non-English speakers were denied a meaningful education, the
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disparate impact caused by the school policy violated the Civil Rights Act of 1964 and the
school district was demanded to provide students with “appropriate relief.”
in
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Arguments Against
-Vulnerable with changing governments and administrations
eg. Trump administration used the Congressional Review Act 1996 to repeal Obama era
Internet Privacy rights afforded under the FCC Privacy control rules.

International Law
-The War on Terror has seen the USA adopt policies that are challenging its reputation as a
nation that respects human rights
-It has resisted the adoption of international human rights law and exempted itself from the
ICC
-Policies of extra-judicial detention, waterboarding and extraordinary rendition are highly
controversial
-Many in the USA and beyond regard these policies as unacceptable and both the Bush and
Obama Administrations (USA executives) have banned or watered down these policies
-The supreme court has ended the legal isolation of detainees at Guantanamo Bay

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Changing political and legal experience of Muslims

Background to Muslims in Australia- who are they, what is their history here?
-According to the 2011 census 476,300 people identify as Muslim
-The first camel drivers arrived in Melbourne in June 1860, when eight Muslims and Hindus
arrived with the camels doe the Burke and Willis expedition
-The first Mosque was built in Australia in 1861
-Early Muslims faced discrimination of various sorts in Australia including racism, restrains
on trade and even violence
-In the early 20th century Muslims of non-European descent found it difficult to emigrate to
Australia because of the government policy which limited immigration on the bases of links
with Great Britain and Ireland ie. The White Australia Policy
-Politicians of the era claimed that non-white immigrants would cause social disharmony
-In the 1920s and 1930s Albanian Muslims were accepted, whose European heritage made
them more compatible with the White Australia Policy
-Albanian Muslims built the first mosque in Victoria in 1960 and the first mosque in

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Melbourne in 1963

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-Since 9/11 and the 2005 Bali bombings, Islam and its place in Australian society has been
the subject of much public debate
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-Muslims have faced increased discrimination and harassment since that time in 2005 and
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2001
Do

Changing Laws/ AG Terrorist

-In a report released by the Australian National Security a list of terrorist organisations, of
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which all but one had Islamic affiliations

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-Thus this establishes an evident link between the Muslim people and any anti-terrorist laws.
-Anti terrorism laws;
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-The Australian Security Intelligence Organisation Legislation Amendment

(Terrorism) Act 2003
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-Gave ASIO special powers to question, or question and detain, a person

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suspected of having information related to an anti-terrorism investigation,

even if that person is not suspected of a terrorist offence. These warrants can
authorise detention of a person for up to seven days.
-The Anti-Terrorism Act 2005 (Cth)
-Introduced new offences of sedition and repealed the old sedition offences
contained in the Crimes Act. The sedition offences provoked public debate
about how freedom of expression should be protected, Under the laws a
person could be charged with sedition for rhetorical statements, parody,
artistic expression or other communications that the person does not intend
anyone to act upon.
-In response to the Australian Security Intelligence Organisation Act 1979, there was a
Parliamentary Joint Committee on ASIO,ASIS and DSD tabled its report on the inquiry into
the Review of Division 3 of Part II of the ASIO Act 1979 entitles Asio’s Questioning and
Detention Powers
“There is little doubt that the Muslim community bears the brunt of the legislation;
indeed, evidence of this is already apparent. At the time of publication, all people
arrested under the legislation have been Muslim, and all of the 17 proscribed
terrorist organisations are linked to Muslim organisations.”

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Legal Cases
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
-2007 Haneef was working as a doctor in Queensland, was arrested by the AFP
-Arrest followed the attempted terrorist car bombings at Glasgow International Airport on 30
June 2007
-Under the provision for ‘dead time’ Dr Haneef was detained and questioned without charge
for 12 days
-Charge was unsustainable and was quickly dropped
-However, in the interim Dr Haneef’s immigration visa was cancelled on character grounds-
a decision which on review was found to be unlawful
-The arrest, detention, charge and subsequent release of Dr Mohamed Haneef represented the
first time that a number of legislative provisions, introduced to respond to the threat of
terrorism, were relied on in practice
-The case revealed deficiencies in those provisions and a marked disparity between their
actual and intended operations
-Problems with the operation and application of sections 3W, section 15AA and Part

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1C of the Crimes Act-most notably the ‘dead time’ provisions
-Problems with the Criminal Code terrorist organisation offence provisons
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-Problems with 501 of the Migration Act and the intersection between migration law
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and criminal law.
Do

Individual Parliamentarians
-It wasn’t until 2010 that Australia was elected its first Muslim representative into federal
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parliament- Ed Husic
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-Prior to this there had only been two other Muslim representatives in state Parliaments;
Adem Somyurek and Shaoquett Moselmane
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-Ed Husic and Anne Aly currently the only current Muslim federal parliamentarians
-This is a vast under representation; according to the 2016 census Muslims make up 2.6% of
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the population whilst currently there is only a 0.8% political representation

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-This demonstrates that while political representation for Muslims has increased it is still one
plagued with discrimination and underrepresentation.

Political Parties
-Furthermore discrimination against Muslims in politics is made apparent by political parties,
notably Pauline Hansen’s One Nation Party; who has enacted a policies which aim to reduce
Muslim immigration and the banning of the burqa
-In recent times there has been a push for higher Muslim Representation in parliament, with
the advent of a new political party in 2015- The Australian Muslim Party
-The Party’s leader stated: “We’re in 2015 [and] there are four parties that have been
created specifically oppose Muslims and Islam; so I thought I would give them
something to actually oppose and create a Muslim Party.”
-Furthermore, a recent political stint by Pauline Hansen which featured her wearing a Burqa
has further diminished the progress of the Muslim political experience.

138
International Protection of Rights

Definitions
Protocol
A supplementary treaty or agreement attached to an original treaty or covenant
(international). It usually specifies details concerning the implementation of the original
agreement. They are optional- countries may sign the original agreement but are not bound to
its attached protocols.

Covenant
A signed written agreement between two or more parties (nations) to perform some action.

Treaty
An agreement under international law entered into by actors in international law, namely
sovereign states and international organisations. A treaty may also be known as;
(international) agreement, protocol, covenant, convention, exchange of letters etc. Regardless

t
of the terminology all of these international agreements under international law are equally

en
treaties and the rules are the same.

Positive Rights m
cu
Rights considered positive rights, may include other civil and political rights such as police
protection of person and property and the right to counsel, as well as economic, social and
Do

cultural rights such as public education, health care, social security and a minimum standard
of living.
p
wa

Negative Rights
Rights considered negative rights may include civil and political rights such as freedom of
ks

speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a
fair trial, freedom from slavery and the right to bear arms
in
Th

First Generation Rights

Emerged during the enlightenment period and are identical to negative rights. Prevent a
government from infringing upon the rights of citizens.

Second Generation Rights

Emerged in the 20th Century as Western societies became wealthier. They are the same as
positive rights. Oblige a government to act so that people’s rights are met.

Third Generation Rights

Have only recently emerged. Examples include; group rights, such as indigenous peoples’
rights to land, native title rights and right of cultural or religious minorities to maintain
traditional practices. Third generation rights do not easily fit into the positive/ negative
categories of rights. Can conflict with other rights.

139
Implementation of International Human Rights Laws
Step 1: The Agreements
-UN member states negotiate agreements on Human Rights
eg. Universal Declaration on Human Rights (1948)
Step 2: Nations Sign Up
-Executive government usually represented by the Foreign minister, signs these agreements
-Agreements are international law but not yet domestic law
-Not law until passed under Section 51 (xxix)- the external affairs power
Step 3: Ratification
-Legislation passes through standard legislative process
Step 4: Administration and Enforcement
-May set up a special executive agency to administer the new law
eg. Australian Human Rights Commissions
-Independent agency
eg. Racial Discrimination Commissioner
-2016 Tim Soutphommasane (independent officer of the executive) held the office.

t
en
eg. Convention on the Elimination of All Forms of Racial Discrimination (CERD) negotiated
and adopted by UN 1963
Racial Discrimination Act 1975
Koowarta v Bjelke 1983
m
cu
Do

Parliamentary Joint Committee on Human Rights

-Purpose of scrutinising all legislation and delegated legislation introduced into the
Commonwealth Parliament for compatibility with international covenants.
p

-International covenants and conventions:

wa

-International Covenant on Civil and Political Rights

-International Covenant on Economic, Social and Cultural Rights
ks

-International Convention on the Elimination of All Forms of Racial Discrimination

in

-Convention on the Elimination of All Forms of Discrimination against Women

-Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Th

Punishment
-Convention on the Rights of the Child
-Convention on the Rights of Persons with Disabilities
-PJCHR publishes a repost to both houses of Parliament each sitting week
-Report alerts the Parliament to any human rights concerns that the committee
discovers when it scrutinises bills
-Helps to maintain the status of international covenants, protocols and treaties by
ensuring that all Bills and regulations are assessed against the human rights standards
they establish

140
How does Australia support Covenants/Conventions and Protocols
Covenants/ Convention
International Law Australian Federal Statute Executive Office Holder
The Convention on the Racial Discrimination Act The Australian Human
Elimination of All Forms 1975 Rights Commission
of Racial Discrimination
Race Discrimination
Commissioner
The Convention on the Sex Discrimination Act The Australian Human
Elimination of All Forms 1983 Rights Commission
of Discrimination against
Women Sex Discrimination
Commissioner
Declaration on the Australian Human Rights The Australian Human
Elimination of All Forms Commission Act 1986 Rights Commission
of Intolerance and of
Discrimination Based on

t
en
Religion or Belief
The International Australian Human Rights The Australian Human
Covenant on Civil and Commission Act 1986 m Rights Commission
cu
Political Rights
Declaration on the Rights Australian Human Rights The Australian Human
Do

of Mentally Retarded Commission Act 1986 Rights Commission

Persons
Age and Disability
p

Discrimination
wa

Commissioner
The Convention on the Australian Human Rights The Australian Human
ks

Rights of the Child Commission Act 1986 Rights Commission

in

The Convention against Crimes (Torture) Act 1988 Australian Federal Police
Torture and Other Cruel,
Th

Inhuman or Degrading
Treatment of Punishment
The international Not ratified in Australian The Aboriginal and Torres
Covenant on Economic, law Strait Islander Social Justice
Social and Cultural Rights Commissioner has some
The Australian Human powers to protect and
Rights Commission Act promote the human rights of
1986 delegates power to the indigenous Australians.
Aboriginal and Torres Strait
Islander Social Justice
Commissioner

The Native Title Act 1993

delegates powers to the
ATSISJC
The Convention on the Disability Discrimination The Australian Human
Rights of Persons with Act 1992 Rights Commission
Disabilities

141

Convention Concerning
Discrimination in Respect
of Employment and
Occupation
Age and Disability
Discrimination
Commissioner
Sex Discrimination Act The Australian Human
1983 Rights Commission
Age Discrimination Act Sex Discrimination
2004 Commissioner

Age and Disability

Discrimination
Commissioner

ICCPR- International Covenant on Civil and Political Rights

How we do
-Racial Discrimination Act 1975
eg. Koowarta v Bjelke 1983

t
en
-Overode Queensland law
-Using Section 51v (xxix) the external affairs power
How We Don’t m
cu
-Sexuality under ICCPR
eg. Toonen v Austalia 1994
Do

-Toonen in 1991 a homosexual man from Tasmania sent a communication to Human Rights
Committee
-Homosexual sex was criminalised in Tasmania
p

-Tooned argued that this violated his right to privacy under Article 17 of the ICCPR
wa

-Law also discriminated against homosexuals violated Article 26

-Human Rights Committee agreed that Tasmanian law was in violation of the treaty signed
ks

by Australia
in

-Commonwealth Government passed law overriding Tasmania’s criminalisation of

homosexual sex
Th

eg. Young v Australia 1999

-Veteran pensions for homosexual couples
-Discriminated against under S26
-Committee noted that Australia is obliged to ensure that similar violations of the Covenant
do not occur in the future
-Requires changing of domestic law for there to be any real world impact

ICESCR- International Covenant on Economic, Social and Cultural Rights

-United Nations Committee on Economic Social and Cultural Rights (ICESCR) monitors
compliance with the ICESCR and provides on how countries should interpret the ICESCR
-An increasing number of countries across all continent and legal systems, have incorporated
judicial review of economic social and cultural rights
-10 December 1975 Australia agreed to be bound by the ICESCR
-Does not form part of Australia’s domestic law and is not scheduled to or declared under the
AHRC Act
eg. ICESCR Report on Australia 2009
-Commended Australia on its efforts to combat violence against women and the apology to
the stolen generation
-Recommended an Australian Human Rights Act

142
-Expressed concern that despite the absence of any significant factors or difficulties impeding
the effective implementation of the Covenant, substantial problems persist in Mental Health,
Poverty and Homelessness
-Mental Health services are chronically under-resourced, only 1/3 people with mental
illness are able to access adequate treatment
-Australia despite recommendations has not adopted a poverty line or accepted
evidence that 12% of the nation live below the poverty line
-Committee called on Australia to ensure universal and adequate social security
coverage and review potentially discriminatory and punitive measures, including the
‘quarantining’ of payments under the Northern Territory Intervention
-With unemployment rates rising many Australians will struggle to make ends
meet because social security payments are insufficient to guarantee an
adequate standard of living and to enable participation in our community

t
en
m
cu
Do
p
wa
ks
in
Th

143
Democratic Principle- US and Australia
Political Representation
Representation describes how some individuals stand in for others, for a certain time period.
Representation usually refers to representative democracies, where elected officials
nominally speak for their constituents in the legislature.
eg. In Australia, we use various voting methods to elect officials. The preferential voting
system allowed Tim Hammond to win the seat of Perth in the 2016 election despite not
winning the majority in the primary voting round.

Australia- Good
Secret Ballot
-Voters must be free from intimidation. This is a key principle of democracy. Only the elector
should know how they cast their vote. It is achieved by providing private voting booths for
electors and by regarding any identifiable ballot paper as an informal vote. It was pioneered
in Australia and is often referred to as the ‘Australian Ballot’ in other democratic countries.
Compulsory Voting

t
-Ensures that parliament represents the will of the entire population and is not at the mercy of

en
an influential minority
m
eg. Commonwealth Electoral Act 1918 “it shall be the duty of every elector to vote at each
election.”
cu
eg. House of Representatives voter turnout 91% Senate turnout 91.9%
AEC- Australian Electoral Commission
Do

-An independent statutory authority tasked with administering the Commonwealth Electoral
Act 1918
p

-Commonwealth Electoral Act mandates electoral divisions have a similar number of voters-
wa

within a 10% range of the average

Proportional Voting
ks

-Fairness to parties
-Provides political representation for minorities
in

-Usually creates ‘hung senate’ (good for the accountability of executive) and protection of
Th

rights
eg. 20/76 seats in the 45th Parliament are filled by minority parties
Preferential Voting
-Strong link between representative and constituents
-Good for political representation of the majority
-Tends to result in stable government (executive represents majority political will)
-Good for accountability
-One vote, one value
-Quite simple to use and count
eg. Tim Hammond won the seat of Perth having not won a majority of votes in the first
round.

Australia- Bad
Malapportionment
-Smaller states are over represented in the Senate because of the constitutional requirement in
Section 7 for equal state representation in the Senate.
eg. Senator Nick Xenophon
-Won 3 seats in the Senate and one seat in the House

144
-The NXT currently hold the balance of power in the Senate and in February of this year
blocked the government’s $4billion childcare and welfare omnibus bill
-The quota for South Australia is 81,000 votes in comparison to NSW which is 345,000 votes
Over-representation of Major Parties- Preferential Voting System
-In recent times there has been a decline in support for the major parties
-Previously able to muster the support of more than 90% of voters between them, the Liberal
Party and the ALP achieved a combined first preference vote of only 77%
-The preferential voting system hides the contemporary diversity of voting
-Tends to consolidate the primary votes for minor parties into one of the two major parties,
disguising their true electoral support
eg. While only mustering 77% of the vote the two major parties still consist of over 90% of
the seats in the 45th parliament
Voter disengagement
-Voters seem less interested in voting and less trusting in their politicians
eg. Turnout of the 2016 House of Representatives election was the lowest recorded since the
introduction of compulsory voting ahead of the 1925 federal election
-Turnout at the 2016 Senate elections was the lowest recorded since the 1925 federal election

t
en
eg. According to the ABC 254,000 people from 18-24 years old age demographic were not
enrolled to vote in the 2016 election
Lack of diversity m
-Achieves a high degree of mirror representation for the Indigenous and LGBTI communities
cu
in Australia but it is much less successful in accurately representing Australian diversity in
Do

gender, education level and non-English speaking backgrounds

Australia House of Reps Senate
GENDER
p

Female 50 29 39
wa

Male 50 71 61
AGE
ks

18-34 31 2 6
in

35-64 49 94 85
65+ 19 4 10
Th

SEXUAL ORIENTATION
LGBT 3 4 5
Heterosexual 97 96 95
EDUCATION LEVEL
High School 57 6 10
TAFE/VocEd 19 7 14
Bachelor’s Degree 17 41 47
High Degree 7 46 29
NON-ENGLISH SPEAKING
Yes 23 6 14
No 77 94 86
INDIGENOUS
Yes 3 1 4
No 97 99 96

145
America- Good
First Past the Post
-Simple, voters understand it and it provides a strong link between representatives and
electors
-Very clear and overwhelming degree of political representation for the majority- but only in
the states that don’t suffer from gerrymandering
eg. Nancy Pelosi won her seat representing California’s 12th congressional district by
winning the majority of the vote of 80% compared to her opponents 19%
Direct Link with President
-Allows citizens to elect their leader
eg. Obama a democrat, won the 2012 Presidency with a popular vote of 51.1% and an
electoral vote of 332. However, he presided over a republican dominated Congress.
Short cycles
-Promote a higher level of accountability to the electors as they constantly have to remain in
favour of their constituent.
-Poignant when considering seat fluctuations from election to election
eg. In the 2016 election the Republican Party lost 6 seats and the democratic party gained 6

t
en
seats in the last election.

America- Bad m
cu
Voluntary Voting
eg. Highest voter turnout in US history in 20th C around 65%
Do

Gerrymandering
The deliberate manipulation of House of Representatives electoral boundaries for political
advantage.
p
wa

eg. According to the Washington post in America gerrymandering caused the Democrats to
be under represented by about 18 seats in the House, relative to their vote in the 2012
election.
ks

Donations
in

-Donations lack transparency and must raise suspicion that money buys political influence at
the expense of the political representation of ordinary people
Th

eg. Citizens United v the Federal Electoral Commission 2010 demolished the barriers to
excessive donations, ruling that the First Amendment of the Bill of Rights (freedom of
speech) forbids laws limiting political speech.
eg. Koch brothers 2016 donated nearly $900 million to candidates for Congress and
Presidency. * which parties
First Past the Post
-Wipes out virtually any chance of minorities achieving formal political representation in
national government.
eg. There is only 2 independent members of Congress in the 115th Congress.
Electoral College
-Can lead to results which do not accurately represent the will of the people
eg. Trump despite winning the 2016 Presidential election only received 48.2% of the popular
vote, demonstrating how the electoral college system can produce results that do not
represent the interest of the people.
eg. George W Bush despite winning only 47.9% of the popular vote in comparison to Al
Gore’s 48.4% still managed to secure the presidency.

146
Political Participation
The activity of making citizen’s voices opinions and perspectives present in the public policy
making processes such that citizens can participate in their own government.
eg. One such way that citizens can engage with politics through voting. In 2016 there was a
voter turn out of 91% in the House of Representatives and in the Senate 92%.

Australia- Good
Compulsory Voting
Specified in 1924 Commonwealth Electoral Act 1918 “it shall be the duty of every elector to
vote at each election.”
eg. House of Representatives voter turnout 91% Senate turnout 91.9%
Public Funding for Parties
-AEC provides parties that obtain more than 4% of the primary vote to receive funding
-Helps meet costs of developing policies and campaigning for elections
-Reduces reliance on donations and reduces the influence of money in politics
-Thus ensures that voters are not disenfranchised by organisations which are able to exert
monetary influence to impose their political agenda

t
en
eg. 2016 election, political parties that met the 4% threshold will receive $2.62 from the
taxpayer per first preference vote
m
-Liberal and ALP received $24 million and $23 million respectively, together all parties
cu
received $62.7 million
Diverse Party Range
Do

-Diverse range of political parties capable of winning seats demonstrates a high degree of
effective participation in law making and governing for their members and supporters.
eg. Current Political Parties represented in the 45th Parliament:
p

-ALP, Liberals, Greens, Nationals, NXT, Jacqui Lambie Network, Justice Party, One Nation
wa

Pressure Groups
-Associations of likeminded people who seek to influence law making in the interest of a
ks

section of society of or for the general good of society.

in

-Pressure groups such as trade unions, environmental groups, advocacy groups for improved
city infrastructure and so on provide a very real opportunity for active citizens to participate
Th

in their democracy
eg. 2015 the Mackay Conservative Group succeeded in court action to temporarily stop the
Federal Environment Minister’s approval of the massive Adani Carmichael coal mine in
Queensland

Australia-Bad
Electoral Participation
-Voters seem less interested in voting and less trusting in their politicians
eg. Turnout of the 2016 House of Representatives election was the lowest recorded since the
introduction of compulsory voting ahead of the 1925 federal election
-Turnout at the 2016 Senate elections was the lowest recorded since the 1925 federal election
eg. According to the ABC 254,000 people from 18-24 years old age demographic were not
enrolled to vote in the 2016 election
Political Donations
-Reinstating lower thresholds for political donations would improve the transparency of
money in politics and reduce its influence
-Law was changed in 2005 to increase the limit to “more than 10,000” above which parties
have to disclose the source of donations
-Upper limit is indexed so that it increases each year

147
eg. 2012-2013 the Liberal Party received four time more political donations than the ALP
-Some of these included Woodside Energy Limited ($110,000) and Village Roadshow
Limited ($120,00)
Declining Party Membership
-All parties have suffered declining membership for decades
-No party today has more than 50,000 members compared to the highs of nearly 200,000
members boasted by the liberal party in the past
-Political parties have increasingly been dominated by professional career politicians
-Could be addressed by the ‘rank and file’ system
eg. Kevin Rudd changed the ALPs rules concerning the selection process of its leader
allowing a greater role for ordinary members
-The use of more innovative ways to participate such as social media platforms may bring the
young back to the political parties.
-Far less participatory than the primary and caucus system used in the United States
Pressure Groups
-Powerful corporatist sectional groups to distort popular participation
-Achieved through close relationships with Ministers and senior public servants or their

t
en
power to influence decision makers through well-funded campaigns.
-2008 Lobbyist Code of Conduct and Register of Lobbyists help tame the influence of
m
corporatist groups and the money they may contribute to political parties.
eg. -Under Gillard’s minority government she engaged in a lobbying deal with the pressure
cu
groups Clubs Australia which caused her to back away from anti-gambling laws. However,
Do

the Labor party has since flipped on this policy with Labor representative Julie Collins now
speaking of legislation which will see gambling ads being phased out. This demonstrates how
a pressure group with financial influence can distort party policy and thus legislation that
p

passes through parliament.

wa

-The Australian Christian Lobby is one of the largest voices speaking against marriage
equality.
ks

-According to Vote Compass only 33% of Australians are against gay marriage.
Therefor the Australian Christian Lobby represents a powerful minority.
in

-Marrion Maddox a Professor of Religion and Politics says that the Australian Christian
Th

Lobby has achieved “remarkable influence with political leaders on both sides.”
-Which some have suggested may be the cause of the current political inactivity surrounding
the issue.

America- Good
Nomination System
-System of primaries and caucuses provides opportunities for politically active citizens to
join a party to choose the final nominee
-Primary and caucuses are held in the lead up to the presidential election
-System puts the power to choose the candidates in the hands of the party members rather
than party bosses
eg. Republican Party’s nomination of Donald Trump is an example of grassroots democracy
overriding the wishes of the established Republican Party leadership
-Many key figures within the Republican Party tried hard to prevent Donald Trump’s
nomination but they were overwhelmed by the popular vote
-Trump, the people’s candidate, ended up leading a party which reviled him at the time
-2016 primaries demonstrate the power of the primary system with an estimated 28.5% of
eligible voters casting a vote in either the Democratic or Republic primaries

148
Pressure Groups
-Sectional groups representing the interests of sections of the society or economy and a
multitude of cause advocating general benefits for society.
eg. National Rifle Association (NRA), is an example of a very powerful sectional pressure
group
-Allows for the popular participation of millions of Americans who believe in the Second
Amendment right to bear arms
-According to Gallup 58% of Americans view the NRA as favourable
eg. Well resourced pressure groups can use the Supreme Court to achieve unassailable
victories over Congress and President
-The Citizens United v the Federal Electoral Commission 2010 an the District v Heller cases
are examples

America- Bad
Disenfranchisement
-Having rights is not the same as exercising them.
eg. Voter ID laws

t
en
-A University of California study found that “strict photo identification laws have a
differentially negative impact on the turnout of Hispanics, Blacks, and mixed-race Americans
in primaries and general elections.” m
cu
Duopoly
-The USA only has two viable political parties
Do

-No major parties which achieve seats in Congress

-Caused by the first past the post system
-Political spectrum in the USA is skewed away from the left
p

-There is little representation for those with a social democratic or socialist political
wa

philosophy… the two parties offer limited political choice

eg. The rise of Bernie Sanders as a serious contender for the Democratic Presidential
ks

nomination in 2016 shows that there may be significant popular support for these left wing
ideologies
in

-Bernie Sander’s candidacy provided a rare example of effective political representation for
Th

American social democrats and socialists.

-American voters are seeking participation and representation outside the standard political
parties
Pressure Groups
-Dominance of powerful sectional interests in the USA is very strong
-Money buys political representation from Congressmen and Congresswomen
-Citizens United v The Federal Electoral Commission 2010 enables powerful sectional
groups to buy influence
eg. USA farm lobby
-Farm lobby has secured huge government subsidies, especially for corn
-Ethanol Mandate for corn-based ethanol to be added to petrol creating a market for a product
which is inferior to pure gasoline but results in demand for corn-based alcohol
-Farm lobby fought for the Ethanol Mandate and will fiercely resist any attempt to remove it
-Pressure groups may override democratic laws and policies by using court action in the
Supreme Court
-Judicial supremacy over rights and constitutional interpretation gifts power to pressure
groups which use litigation to achieve their aims

149
Rule of Law
A concept that all authority is subject to, and constrained by the law. Government is not
arbitrary. All citizens/ persons operate within the law and are controlled by it. Everyone is
entitled to have a matter heard by an independent and impartial court or tribunal.

-Government is not arbitrary. The government must govern in accordance with the law.
eg. The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55
-All people operate within the law and are controlled by it.
eg. Troy Buswell a former Liberal member for the WA Legislative Assembly was convicted
and fined for 11 motor vehicle offences whilst holding the position of Minister for Transport
-Everyone is entitled to have a matter heard by an independent and impartial court or
tribunal.
eg. Al Jrood v The State of Western Australia [2016] WASCA 73

Australia- Good
Judicial Review: Accountability Mechanism
-Parliament’s legislative power has been held accountable to constitutional law and

t
en
government policies held accountable to constitutional law and statute law.
eg. Williams v Commonwealth 2012
m
-The legislative cannot make laws that the executive can use however they like
cu
-Williams No 1 brought into the public eye an instance where the government was behaving
arbitrarily and thus the court rules it ultra vires
Do

eg. The Malaysia Solution- The Gillard government signed a deal with the Malaysian
Government dubbed the ‘Malaysian solution’. The Government proposal was that Australia
would swap 800 asylum seekers held in detention centres for 4000 refugees waiting in
p

Malaysia for resettlement.

wa

-In the High Court case they ruled 6-1 that the government does not have the power to send
asylum seekers to Malaysia for detention and processing. Under S198 Migration Act 1958.
ks
in

Australia- Bad
Th

Allowance of Retrospective Laws

-Breach the principle of the rule of law
-Rule of law requires that laws be known and predictable
eg. Director of Public Prosecution (Cth) v Keating (2013) High Court upheld the principle of
the presumption against retrospectivity
eg. War Crimes Amendment Act 1988 section 9
-Provided that a person who committed a war crime between September 1 1939 and 8 May
1945 was guilty of an indictable offence.
-The act created a crime out of conduct that had occurred nearly 50 years before its passing
Mandatory Sentencing
-Reduces judicial discretion in sentencing and may affect the rights of minorities
eg. United Nations Committee on the Rights of the Child raised concerns, about mandatory
sentencing in WA and NT both states which have high aboriginal populations, and the high
percentage of Aboriginal juveniles in detention.
“target those property offences that are committed predominately by individuals who come
from a low socio-economic background.”
Anti-Terror
-Reverse the onus of proof, the right to silence and the presumption of innocence
eg. Counter Terrorism Legislation Amendment Bill and the Criminal Code Amendment
(High Risk Terrorist Offenders) Bill 2016

150
-Includes provisions for continuing detention of high risk terrorist offenders

America- Good
Rights Culture
-Citizens are acutely aware of their rights as they are entrenched within the Bill of Rights
eg. 66% of Americans are aware of the Bill of Rights according to Newsweek
No Retrospective Laws
eg. Article 1, Section 9, Clause 3 of the USA Constitution prohibits the Congress from
passing ex post facto aw
-Constitutional prohibition on retrospective legislation
America- Bad
Patriot Act
-Law passed within two months of the September 11 2001 terrorist attacks on New York and
Washington
-Authorise executive agencies to obtain information about a person under investigation
-The Patriot Act allows gag orders to prevent a subject under investigation, including US
citizens, from ever finding out about what they are accused of

t
en
-A person subject to a National Security Letter (NSL), which authorises investigation, cannot
have access to Judicial Review
m
-Patriot Act also allowed the interception of communications without a warrant and the
cu
delayed notification of search warrants where a subject is notified of a warrant only after a
search is carried out on their property
Do

-Patriot Act may undermine the presumption of innocence and the right of a suspect to know
the charges against them
-Reduces checks on arbitrary use of power
p
wa

Judicial Independence
ks

A key democratic principle. The judiciary must be completely free from interference and
influence from the parliament or the government or any other institution or person. A
in

component of the rule of law.

Th

-Judges should not fear political repercussions when handing down decisions
eg. Williams v Commonwealth 2012 and Williams v Commonwealth 2014
-Judges should not be swayed by trends and public opinion but should follow the law and
precedent
eg. The State of Western Australia v Lloyd Reyney 2012

Australia- Good
Section 71
-Vests judicial power in the High Court and other courts the parliament may create
eg. Brandy’s Case (Brandy v Human Rights and Equal Opportunity Commission (1995)
-Involved a dispute concerning the powers of the Human Rights and Equal Opportunity
Commission
-Mr Brandy has had an order made against him by the HREOC
-The HREOC not being a court could not enforce its decision but the Act under which it
operated allowed its decisions to be registered in the Federal Court and thus made
enforceable
-Mr Brandy argued that the HREOC had judicial power while not being a ‘Chapter 3 court’.
The High Court Agreed
Section 72

151
-Guarantees Judicial independence by protecting judges from arbitrary removal ore
reductions in their pay
-Only the executive can appoint Chapter 3 Judges an only the Parliament can ‘pray for their
removal’- separating the powers of appointment and dismissal
eg. Vasta 1989, Murphy 1984
Legally binding Judgements
eg. Boilermakers Case (R V Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94
CLR 254)
-Involved a dispute over the powers of the Commonwealth Court of Conciliation and
Arbitration
-The Constitution (Section 51 (xxxv) limits the Commonwealth to ‘arbitration and
conciliation’ as the methods by which to resolve industrial disputes which involve more than
one State- it does not permit ‘adjudication’
-The Commonwealth Parliament established the Commonwealth Court of Conciliation and
Arbitration under S71 to decide and (adjudicate) industrial disputes
-In a decision which:
a) Strictly separated the judicial power from other powers

t
en
b) Narrowly defined ‘judicial power’ the High Court ruled that the Commonwealth
Court of Conciliation and Arbitration could not exercise both an ‘arbitration’ power
m
(interpreted as an executive power) and a ‘judicial power’
eg. Brandy’s Case (Brandy v Human Rights and Equal Opportunity Commission (1995)
cu
-Involved a dispute concerning the powers of the Human Rights and Equal Opportunity
Do

Commission
-Mr Brandy has had an order made against him by the HREOC
-The HREOC not being a court could not enforce its decision but the Act under which it
p

operated allowed its decisions to be registered in the Federal Court and thus made
wa

enforceable
-Mr Brandy argued that the HREOC had judicial power while not being a ‘Chapter 3 court’.
ks

The High Court Agreed

Constitutional Decisions Abided by
in

Williams v Commonwealth of Australia (2014) HCA 23 “Williams No.2”

Th

-Against the Constitutionality of using Section 51 (xxiiiA) to pay for the Chaplaincy Program
-The High Court found that the payments were not ‘benefits to students’ and struck down the
amendment to the Financial Management and Accountability Act 1997, it was found to be
ultra vires.
-According to the court, using Ejusdem Generis, it found that benefits under S51(xxiiiA)
must be paid directly to the beneficiary
-This case meant that the Abbott and Turnbull governments now had to fund the program
under S96 as a specific purpose payment. Meaning that

Australia- Bad
Mandatory Sentencing
-Limits Judicial discretion
eg. R v Loveridge (2013) charged 4 years imprisonment for one punch assault parents felt
sentencing was too lenient Mandatory Sentence for one punch laws include an 8 year
minimum sentence for fatal one-punch assaults where alcohol or drugs are a factor
Lack of National Charter of Rights
The adoption of a Commonwealth Statutory charter of rights based on the Victorian, ACT
and British examples would increase the ability of the judiciary to defend basic freedoms and
rights

152
-Charters or Bills would increase the dialogue between Parliament and the courts and result
in improved legislation without compromising the sovereignty of parliament or the
independence of the judiciary
America- Good
Article 1,2,3
Article 1 and 2- Allow judges to be impeached in the same way as any other federal official if
their conduct is deemed no of ‘good behaviour’
eg. 15 Judges have been impeached in this way
eg. 2010 Thomas Porteous of the United States District Court for the Eastern District of
Louisiana
eg. 1804 Samuel Chase Supreme Court
Article 2 Section 2- States the President shall, with the advice and consent of the Senate
appoint judges of the Supreme Court
eg. In 2017 Neil Gorsuch was appointed to the Supreme Court after the being nominated by
Trump and gaining the consent of the Senate
Article 3- Section 1 vests judicial power in the Supreme Court and other Court the Congress
may create

t
en
-Judges may hold office during ‘good behaviour’

America- Bad m
cu
Judges are elected
-Seven states elect judges rather than use the executive-nominates/legislature consents model
Do

outlined for the appointment of federal judges above

-Judges in common law jurisdiction almost everywhere derive authority from the common
law tradition and established practices, maxims and processes, not a democratic mandate
p

-Therefor separate from the political process and above politics

wa

-The public rate the judiciary as the most trusted governmental institution for these reasons
-Electing Judges exposes them to the partisan political process
ks

-Bias is an inherent part of partisanship- in fact ‘partisanship’ on most people’s minds is

in

virtually synonymous with ‘bias’

-Undermines the most fundamental aspect of a judge- impartiality
Th

-Some States only elect their judge in the first instance other re-elect
-Elected Judges who must face re-election can easily be perceived as lacking independence
because they must please a majority of voters, and powerful pressure groups, if they wish to
maximise electoral support
eg. Alabama, Texas, Louisiana and West Virginia require judges to be re-elected for
subsequent terms
-Judge William Adams was not re-elected in Texas

Natural Justice
A principle of justice incorporating the rule against bias and the right to a fair hearing. Fair
processes for determining the truth in a dispute, also known as ‘due process’. Courts and
tribunals have a duty to act fairly.
-Impartiality or a rule against bias
eg. Lloyd Reyney v State of Western Australia 2012
-The right to a fair hearing
eg. Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52
-Sleeping judge

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-NSW District Court
-High Court claimed that the trial was flawed and a miscarriage of justice had occurred and
ordered a retrial
-Basing decisions on evidence
eg. Protected by strict rules of evidence, prohibiting against hearsay etc
-Uniform Evidence Act Section 60
-Having open and transparent processes
eg. Lloyd Rayney v State of Western Australia (2015) “The plaintiff should not be expected
to guess which items of evidence are relied upon by the defendant to justify the statement at
any relevant time” Justice Chaney

Australia- Good
ADR: Mediation
-The procedure of adversarial trial and the mechanisms of ADR are well established by
tradition and supported in legislation
eg. Commonwealth Evidence Act 1995 legislates rules of evidence
eg. Australian Human Rights Commission Act 1986 requires the Human Rights Commission

t
en
use conciliation, a form of ADR to resolve disputes
eg. Family Law Act 1975 forces parents disputing custody to attempt to settle these very
emotional disputes through ADR before going to court m
cu
eg. 98% civil matters never reach trial stage
Legal Representation
Do

eg. Dietrich v The Queen [1982] HCA 57

-Found a common law right to legal representation
-Led to the creation of legal aid
p

-Helping to improve the second element of natural justice (hear both sides) by ensuring the
wa

accused can put their best case forward in court regardless of wealth
Ombudsmen
ks

-To receive and act on complaints made against the public services. Ombudsmen can make
recommendations but cannot enforce a decision. They can help achieve natural justice.
in

eg. More than 500,000 complaints are made to the public sector and industry ombudsmen in
Th

Australia each year

Australia- Bad
Expensive
-Issue of access is perhaps the major criticism of the ability of Australia’s court system to
achieve natural justice
-Access denied is justice denied
eg. According to Community Law Australia Legal costs for undertaking a federal court case
in 2007/8 would be around $74,000-84,000
Legal Aid- not civil
-Usually only available for criminal trials
-An accused must exhaust their own resources before legal aid is available
eg. According to The Productivity Commission’s 2014 report into access to justice
arrangements estimated that only the most seriously financially struggling 8% of households
qualify for court representation by Legal Aid
-While it is estimated that 14% of Australia’s population are under the poverty line
Indigenous People Adversely Impacted
-Disproportionately high number of indigenous people who encounter the criminal justice
system and end up in prison is a particularly urgent issue in which Australia must do better

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eg. Royal Commission into Aboriginal deaths in custody
-Social, economic and other factors such as mandatory sentencing result in discrimination
against this group by the system
-Natural justice for this group has improved along with progress in indigenous rights but it is
a work in progress
eg. United Nations Committee on the Rights of the Child raised concerns, about mandatory
sentencing in WA and NT both states which have high aboriginal populations, and the high
percentage of Aboriginal juveniles in detention.
“target those property offences that are committed predominately by individuals who come
from a low socio-economic background.”

America- Good
ADR
eg. The Alternative Dispute Resolution Act 1988 facilitate cheaper, quicker and better merits
based dispute resolution
Legal Aid
eg. Legal Services Corporation was established by Congress in the 1970s to provide funding

t
en
to State Legal Aid Services which provide legal assistance to the poor
eg. Established by Gideon v Wainwright 1983
Supreme Court determines trial process and procedures m
cu
-Rules Enabling Act 1934 enables the Supreme Court to determine the processes and
procedures of the adversarial trial, including rules of evidence.
Do

Bill of Rights
-Has a litigious culture and many people resort to litigation to resolve disputes
-Bill of Rights guarantees some legal rights
p

-Fifth Amendment: Right to silence for an accused person

wa

-Sixth Amendment: Right to certain legal rights

-Speedy trial
ks

-Public trial
in

-Impartial jury
-To know the accusations against you
Th

-Certain rules of evidence (hearsay)

-Seventh Amendment: Right to jury in a civil case

America- Bad
Access
eg. According to the Wall Street Journal 30, 000 civil cases were stalled in federal court
backlogs for more than 3 years
Too much litigation
-Too much litigation leads to a decrease in quality of public legal representation due to the
overwhelming case load
eg. According to the Brennan Centre For Justice “… anywhere from 60 to 90 percent of
criminal defendants need publicly funded attorneys, depending on the jurisdiction.”
eg. According to the National Association of Criminal Defence Lawyers “in New Orleans,
part time defenders are … [limited] to seven minuted per case.”

155