Topic 1: Introduction to Australian Government
Topic 1: Introduction to Australian Government 1.1 Fundamental concepts and institutions a) Public law Determines the scope of public power, confers/allocates public power, and determines which branch of government can exercise power. Sub-divisions of public law: constitutional law, administrative law, statutory construction, human rights. Concerned with vertical relationships (i.e. between individuals and the state.) Distinct from private law, which regulates the interaction between individuals i.e. a horizontal relationship b) Rule of law No one is above the law; the law binds the state. Aims to prevent arbitrary government action, guarantee equality before the law, and ensure accountability to the law. Consistent across the many definitions of the rule of law is the role of an independent Judiciary in policing the limits of the law as between the ruler and the ruled. The Rule of Law is hostile to all forms of unlimited, arbitrary power. According to the Rule of Law, the law should be: - public (not secret) - clear and predictable - (generally) prospective, not retrospective - stable – not changed too often - binding on both officials and citizens - consistently and impartially applied (requiring accessible, independent courts using fair procedures) c) Parliament Makes statute law Bicameral upper and lower house Elected constitutionally required and guaranteed. d) Parliamentary Sovereignty ‘External sovereignty’ sovereignty within the international community; capacity to ward off threats ‘Internal sovereignty’ a ‘monopoly over the exercise of force’ within a country The powers of the government are divided among different organs of the government, thus dividing internal sovereignty to ensure that no single person/institution is sovereign. e) Executive Ministers – core of Australian executive government Certain ministers hold portfolios Senior ministers form cabinet Head of executive is queen, represented in Australia by the Governor-General f) Government General definition: people who exercise public power. Political party controlling the lower house of parliament. Judiciary, executive, legislature PM is politically the head of government
g) Australian federalism Two levels of government: federal and state. States are independent, functioning governments; federal government is not necessarily superior. Problems: conflicts of interest between individual states, and between states and the Commonwealth s109 Constitution if there are conflicts between federal and state governments, federal law prevails. Legislative power of Commonwealth Parliament is limited to the powers in ss 51, 52 and 122 of the Constitution. States retain plenary legislative power over all areas, except for matters reserved for the Commonwealth only (e.g. armed forces s114)
Advantages of Federalism Provides greater scope for customising policies to local needs. Increases individual freedom people can move to a location in the federation that best suits their beliefs and preferences. Provides an additional level of democratic participation at the local level. An important check against a concentration of power in a national government.
Disadvantages of Federalism Individuals and businesses must comply with different regimes as they travel across the country. Concerns about equality and efficiency drive calls for nationwide schemes and standards to be adopted at the expense of local diversity and innovation.
h) Representative and Responsible government Representative government: people vote on representatives, who decide on the law. (As opposed to Direct Democracy, where people directly vote about the law) Responsible government - Executive government is responsible to Parliament - The government holds the executive government to account using MONEY If PM loses majority in lower house, they face the prospect of money running out (1975 – Whitlam government) - Australian responsible government relies heavily on Constitutional conventions i) ‘Popular Sovereignty’ Refers to the fact that Australian individuals (through electing representatives and through their role in amending the Australian Constitution) allegedly have the ultimate power. j) Judiciary; Judicial Independence Judiciary: System of courts staffed by judges APPLIES the law Interpret statutes, determine what the law requires and if it has been broken Strict separation of judicial power from other branches of government. Judicial power is the power to ‘interpret’ the law. k) Role of international law as a part of Australian law
NB: International law includes customs, treaties, and rulings of international tribunals/committees Australia is a ‘dualist’ state i.e. international and domestic law are separate Therefore, even if the Australian government enters a treaty with other countries, this does not alter our domestic law. (For domestic law to change, Parliament must pass legislation giving effect to the terms of that treaty.) l) Constitutional Conventions Unwritten rules of behaviour that restrict the exercise of power. m) Judicial Review The judicial branch of government conducts judicial review of the actions of the other branches of government (executive and legislative.) Two types of judicial review: 1) Review Commonwealth and state exercises of power against the Constitution 2) Ensure that executive action is exercised in accordance with the legal limits that apply to it. These limits are set by the Constitution, statute, and common law. An important avenue for ensuring that executive decisions are not ultra vires. 1.2 Fundamental developments English System of public law Magna Carta 1215 limited powers of the king; contained due process guarantees such that no free man could be punished except by lawful judgement of his equals or the law. Glorious Revolution resulted in the Bill of Rights 1689 Responsible government is an unwritten convention in England Development of public law in Australia Conquest, cession, settlement Terra Nullius – Aboriginals supposedly weren’t making ‘effective’ use of land 1788 colonisation autocratic state where the Governor had complete power; could exercise executive, quasi-legislative and judicial power. s24 Australian Courts Act 1828 (Imp) From 25 July 1828, all common and statute law of England was received by the colony of NSW. Subsequent UK legislation would apply to the colony only by ‘paramount force.’ Established new legislative Councils which could veto the Governor’s decisions Government had limited powers, but was still non-representative and irresponsible no direct chain of accountability between the government and the people they governed Colonial Laws Validity Act 1865 (Imp) set legislative limits for colonies all laws received by colonies before 25 July could be amended by the colonial legislatures Colonial legislatures had full power over their own constitutions and judicatures. Imperial Parliament could legislate for colonies by ‘paramount force’. Colonial legislation would be invalid if repugnant to such legislation, but not otherwise (thus not bound by common law) Commonwealth of Australia Constitution Act 1900 (UK) Legislative and executive powers of Parliament – ss51 & 51 (therefore no strict separation) Separation of judiciary (s71); independence of judiciary (s72) s75: Judicial review of executive power
(Judiciary also can review the validity of legislation. People will argue in courts that legislation violated the Constitution. Courts review the legislation, and invalidate if it is inconsistent.) Commonwealth can override/exclude state laws s109 Free trade v protectionism Federation established a national market with free trade between states. States have an independent existence under the Constitution; not subject to Commonwealth control s122 – Territories are subject to Commonwealth controls. They are self-governing institutions, but only because the Commonwealth parliament has passed legislation under s122 granting this, which can be abolished at any time. Statute of Westminster 1931 (Vic) UK Parliament could no longer pass legislation for the Commonwealth without the request and consent of the Commonwealth Parliament. Doctrine of repugnancy no longer limited the Commonwealth Parliament. Adopted by Australia in the Statute of Westminster Adoption Act 1942 (Cth) Australia Acts 1986 (Cth) Achieved states the same level of independence as the Commonwealth. Terminated the UK Parliament’s power over the states, territories and the Commonwealth Removed extra-territorial limitation on State Parliaments Abolished the availability of appeals to the Privy Council from State Courts Reinforced that the Queen and her representatives must act on the advice of state or Commonwealth government And much more hooray!
1.3 Constitutionalism a) What is constitutionalism? Political doctrine: the law of the constitution is supreme in a legal and moral sense. The power of the government can (and should) be defined by the law. Constitutionalism is the Rule of Law applied to the state Constitutionalism is enforced through: - Representative government/democracy - Bicameralism Lower and Upper houses must agree if a law is to be passed - Responsible government - Judicial independence within the separation of powers - Federalism - Judicial review of legality and validity of legislative and executive action. Political constitutionalism relies on political mechanisms to prevent an abuse of power – these mechanisms include democracy, federalism, separation of powers, checks & balances Legal constitutionalism relies on legal mechanisms to prevent an abuse of power – including judicial review of legality of executive and legislative action; enforcement of rights b) Alternative models of constitutionalism Comparison of constitutions UK Australian States Written No Yes Rigid No No Separation of powers No No Bill of Rights No No
Australia (Cth) Yes Yes Partial Minimal
USA Yes Yes Yes Yes
g) Australian federalism Two levels of government: federal and state. States are independent, functioning governments; federal government is not necessarily superior. Problems: conflicts of interest between individual states, and between states and the Commonwealth s109 Constitution if there are conflicts between federal and state governments, federal law prevails. Legislative power of Commonwealth Parliament is limited to the powers in ss 51, 52 and 122 of the Constitution. States retain plenary legislative power over all areas, except for matters reserved for the Commonwealth only (e.g. armed forces s114)
Advantages of Federalism Provides greater scope for customising policies to local needs. Increases individual freedom people can move to a location in the federation that best suits their beliefs and preferences. Provides an additional level of democratic participation at the local level. An important check against a concentration of power in a national government.
Disadvantages of Federalism Individuals and businesses must comply with different regimes as they travel across the country. Concerns about equality and efficiency drive calls for nationwide schemes and standards to be adopted at the expense of local diversity and innovation.
h) Representative and Responsible government Representative government: people vote on representatives, who decide on the law. (As opposed to Direct Democracy, where people directly vote about the law) Responsible government - Executive government is responsible to Parliament - The government holds the executive government to account using MONEY If PM loses majority in lower house, they face the prospect of money running out (1975 – Whitlam government) - Australian responsible government relies heavily on Constitutional conventions i) ‘Popular Sovereignty’ Refers to the fact that Australian individuals (through electing representatives and through their role in amending the Australian Constitution) allegedly have the ultimate power. j) Judiciary; Judicial Independence Judiciary: System of courts staffed by judges APPLIES the law Interpret statutes, determine what the law requires and if it has been broken Strict separation of judicial power from other branches of government. Judicial power is the power to ‘interpret’ the law. k) Role of international law as a part of Australian law
NB: International law includes customs, treaties, and rulings of international tribunals/committees Australia is a ‘dualist’ state i.e. international and domestic law are separate Therefore, even if the Australian government enters a treaty with other countries, this does not alter our domestic law. (For domestic law to change, Parliament must pass legislation giving effect to the terms of that treaty.) l) Constitutional Conventions Unwritten rules of behaviour that restrict the exercise of power. m) Judicial Review The judicial branch of government conducts judicial review of the actions of the other branches of government (executive and legislative.) Two types of judicial review: 1) Review Commonwealth and state exercises of power against the Constitution 2) Ensure that executive action is exercised in accordance with the legal limits that apply to it. These limits are set by the Constitution, statute, and common law. An important avenue for ensuring that executive decisions are not ultra vires. 1.2 Fundamental developments English System of public law Magna Carta 1215 limited powers of the king; contained due process guarantees such that no free man could be punished except by lawful judgement of his equals or the law. Glorious Revolution resulted in the Bill of Rights 1689 Responsible government is an unwritten convention in England Development of public law in Australia Conquest, cession, settlement Terra Nullius – Aboriginals supposedly weren’t making ‘effective’ use of land 1788 colonisation autocratic state where the Governor had complete power; could exercise executive, quasi-legislative and judicial power. s24 Australian Courts Act 1828 (Imp) From 25 July 1828, all common and statute law of England was received by the colony of NSW. Subsequent UK legislation would apply to the colony only by ‘paramount force.’ Established new legislative Councils which could veto the Governor’s decisions Government had limited powers, but was still non-representative and irresponsible no direct chain of accountability between the government and the people they governed Colonial Laws Validity Act 1865 (Imp) set legislative limits for colonies all laws received by colonies before 25 July could be amended by the colonial legislatures Colonial legislatures had full power over their own constitutions and judicatures. Imperial Parliament could legislate for colonies by ‘paramount force’. Colonial legislation would be invalid if repugnant to such legislation, but not otherwise (thus not bound by common law) Commonwealth of Australia Constitution Act 1900 (UK) Legislative and executive powers of Parliament – ss51 & 51 (therefore no strict separation) Separation of judiciary (s71); independence of judiciary (s72) s75: Judicial review of executive power
(Judiciary also can review the validity of legislation. People will argue in courts that legislation violated the Constitution. Courts review the legislation, and invalidate if it is inconsistent.) Commonwealth can override/exclude state laws s109 Free trade v protectionism Federation established a national market with free trade between states. States have an independent existence under the Constitution; not subject to Commonwealth control s122 – Territories are subject to Commonwealth controls. They are self-governing institutions, but only because the Commonwealth parliament has passed legislation under s122 granting this, which can be abolished at any time. Statute of Westminster 1931 (Vic) UK Parliament could no longer pass legislation for the Commonwealth without the request and consent of the Commonwealth Parliament. Doctrine of repugnancy no longer limited the Commonwealth Parliament. Adopted by Australia in the Statute of Westminster Adoption Act 1942 (Cth) Australia Acts 1986 (Cth) Achieved states the same level of independence as the Commonwealth. Terminated the UK Parliament’s power over the states, territories and the Commonwealth Removed extra-territorial limitation on State Parliaments Abolished the availability of appeals to the Privy Council from State Courts Reinforced that the Queen and her representatives must act on the advice of state or Commonwealth government And much more hooray!
1.3 Constitutionalism a) What is constitutionalism? Political doctrine: the law of the constitution is supreme in a legal and moral sense. The power of the government can (and should) be defined by the law. Constitutionalism is the Rule of Law applied to the state Constitutionalism is enforced through: - Representative government/democracy - Bicameralism Lower and Upper houses must agree if a law is to be passed - Responsible government - Judicial independence within the separation of powers - Federalism - Judicial review of legality and validity of legislative and executive action. Political constitutionalism relies on political mechanisms to prevent an abuse of power – these mechanisms include democracy, federalism, separation of powers, checks & balances Legal constitutionalism relies on legal mechanisms to prevent an abuse of power – including judicial review of legality of executive and legislative action; enforcement of rights b) Alternative models of constitutionalism Comparison of constitutions UK Australian States Written No Yes Rigid No No Separation of powers No No Bill of Rights No No
Australia (Cth) Yes Yes Partial Minimal
USA Yes Yes Yes Yes
