1. Government and governance
This unit focuses on how government is structured and the processes that happen within that structure.
It looks at who has power and authority in our political and legal system.
It is important to recognise that the liberal democracy model we have today is a fairly new model. Historically, it was a King or Queen that had all the power in society (sovereignty).
The Divine Right of Kings
The Parliament

2. Government and governance
Govern: To conduct the policy, actions, and affairs of (a state, organisation, or people) with authority.
Government: The persons who make up a governing body.
Governance: The act, process, or power of governing.

3. WESTMINSTER SYSTEM
Legal Studies 3

4. Westminster system - history
Australia’s political system is based on the Westminster system used in Great Britain.
In essence, Westminster is the name given to the system of parliamentary democracy used in countries such as Britain, Canada, Australia and New Zealand.
This information is sourced from:

5. Westminster system: o Constitutional Monarchy o Rule of law
o Doctrine of Separation of Powers
o Representative and responsible government
o Bicameral parliament
o Courts ensure executive and parliament function within their given powers
o Conventions such as Cabinet and two party system

6. Constitutional monarchy
Australia is a constitutional monarchy. This means that the head of State is a monarch, or sovereign, who is governed and bound by the Constitution.
The modern British monarchy is above politics. The monarch is a figurehead who performs ceremonial functions, but does not exercise political power. This power resides in the Parliament.
Australia’s Head of State is Britain’s Queen Elizabeth II. She is represented in Australia by the Governor General.
Whilst the Constitution gives the monarch and the Governor-General extensive powers, our political system has evolved into a liberal democracy in which Parliament and the Executive share power and the monarch acts on the advice of the government of the day.
This information is sourced from:

7. Constitutional monarchy
The appointment of the Governor-General is a good example of how a constitutional monarchy works. Section 2 of the Constitution stipulates that the Governor-General is appointed by the Queen, but for the last half century and more the appointment has been made by the Prime Minister of the day.
Similar examples of constitutional monarchy in action is the automatic granting of Royal Assent to legislation passed by Parliament, even though Section 58, Section 59 and Section 60 of the Constitution permit the monarch and the Governor-General to refuse assent.
There is considerable debate about the extent to which the Governor-General can exercise his own initiative. The precise nature of the reserve powers is unclear, although it has been shown that the Governor-General has influence in decisions concerning the appointment of prime ministers and the early dissolution of Parliament.
. The current Governor General, Peter Cosgrove, appointed by Tony Abbott
This information is sourced from:

8. Governor General – examples of power
Harold Holt replaced with John McEwan appointed by GG
Gough Whitlam stood down by GG
Malcolm Turnbull Double Dissolution approved by GG

10. Double d http://www.abc.net.au/btn/story/s4425873.htm
Double dissolution factsheet
Questions:
In your own words, write a definition of a double dissolution.
Which section of the Constitution provides a mechanism for the double dissolution?
What is a trigger?
What is a ‘joint sitting’?
Gough Whitlam case study:
“…Kerr’s Cur.” (Whitlam, 1975)

11. Republic?

12. Rule of law
The rule of law is a fundamental aspect of fair and accountable government in Australia.
Three key principles:
1) No one is above the law: No person, organisation or the government is above the law.
2) Formal Legal Processes: Independent judiciary; clear and predictable laws; checks and balances on the power of government.
3) Democracy with Formal Legal Processes: Government elected by the people. Freedom to participate in democratic processes.

14. Rule of law – tasks Read through the double-sided Rule of Law handout.
Look at the different principles within the Rule of Law. Why do we have these principles? What might happen if we did not follow the Rule of Law?
Read the newspaper article on anti-protest laws.
What are the anti-protest laws in Tasmania?
What ‘terms’ are used in the NSW and the Tasmanian laws that might be considered vague.
Write a paragraph explaining how these new laws relate to the Rule of Law. Use the pyramid to help you answer this question.

15. Constitutional Monarchy – part 2
Australia’s political system is based on a constitution
What is a constitution?
A constitution is a set or rules setting out the nature, functions and limits of the government. The role of the constitution is to determine the powers and duties of the government.
The Commonwealth of Australia Constitution Act 1900 (UK), effective 01 Jan 1901

16. Constitution – separation of powers
The first three chapters of the Constitution define three largely separate groups – the Parliament, the Executive and the Judiciary – and the roles they play in Australian governance.
However, some of the central features of Australia’s system of government (described as parliamentary, or responsible government) are not set down in the Constitution but are based on custom and convention.

17. Doctrine of separation
Montesquieu’s The Spirit of Laws (1748)
The concept of the tripartite system.
Monstesquieu described a separation of political power among a legislature, an executive, and a judiciary.
He believed in a form of government which was not excessively centralised in all its powers to a single monarch or ruler.
Montequieu specifically argued that “the independence of the judiciary has to be real, and not apparent merely”. The judiciary was generally seen, by Montesquieu, as the most important of powers, and was also considered dangerous.

18. Separation of powers
There are three branches of government (state and federal):
Legislature: The parliament (the houses of parliament within any of the governments in Australia). These parliaments are made up of people elected by citizens. The word ‘legislate’ means ‘to make or enact laws’.
Executive: The public service and government Ministers (the most senior Ministers make up a committee of the executive called ‘Cabinet’) . The executive is the branch of government that puts government laws and programs into effect. In other words, it administers the law.
Judiciary: Judges and magistrates. The judiciary interprets the law. Theoretically, it is independent from the other branches of government.

19. Recap: why do we have a separation of powers?
A system of “checks and balances” so that power is not concentrated in one governing body.

20. Separation of powers
The separation of powers exists on both a national and state level.
In other words, there is a separation of powers in Commonwealth government and State government.

29. One million dollars….

30. Legislative and Executive branches

31. Representative and responsible government
Representative government:
The political idea of representation is based on the idea that some person or institution acts on behalf of the people, by re-presenting their beliefs, attitudes and perspectives.
The Australian political system is one in which the people elect members of Parliament to represent them, hence we have a system of representative government.

32. Representative and responsible government
These representatives meet in Parliament and perform a number of functions:
they decide who will govern.
they make laws (legislate)
they debate issues.
they make representations on behalf of their constituents to the government and the public service.
they monitor the expenditure of public money and the actions of the government.

33. Representative and responsible government
As discussed previously, some features of Australia’s system of government are not set down in the constitution but are based on custom and convention.
Two important customs in Australia’s system of government:
Parliamentary government: The Executive Government comes from within the Parliament (Legislature).
Responsible government: The Executive Government is responsible to the Parliament (Legislature)

34. Bicameral system
The Australian Parliament is bicameral, which means there are two houses.
House of Representatives and the Senate (Commonwealth Government)
House of Assembly and the Legislative Council (Tasmanian Government)

35. Questions
Using the ‘Structure of Australian Government’ handout, answer the following:
1. Briefly describe the roles of the House of Representatives and the Senate. What is their key difference?
2. What is the purpose of having two houses to pass and amend laws?
3. How is a Prime Minister and his/her Governing party decided?
4. Does the Prime Minister and his Ministers (The Executive) have control of both houses in the Parliament?
5. What is the Opposition?

36. Unicameral system – Queensland
Read through The Conversation (2013) article on recent Bikie laws in Queensland.
1. What powers do the new laws give the Department of Justice (police etc.) in Queensland?
2. How does this relate to the unicameral system of government and the separation of powers?

37. Responsible government
The federal government (The Executive) is held responsible to both the House of Representatives and the Senate, though in different ways.
The federal government (The Executive) is formed by the party or coalition of parties that holds a majority of seats in the House of Representatives. The government must resign if it loses this majority.
The government is responsible to the Senate in the sense that, while the party or coalition of parties possessing the confidence of the House of Representatives does not need to hold a majority of the seats in the Senate to form government, the Senate may force the government to account for its actions by withholding finance from it; that is, by rejecting an appropriation bill for the ordinary annual services of government. Appropriation bills authorise the government to spend revenue to finance its activities.

38. Question time
Question Time allows the opposition to ask executive government questions and to critically examine its work.
Ministers are called upon to be accountable and explain their decisions and actions in their portfolios (areas of government responsibility). Question Time also provides ministers with an opportunity to present their ideas, their leadership abilities and their political skills.
During Question Time, the opposition also has a chance to present themselves as the alternative government.

39. How does the Separation of powers operate in Australia?
A true separation?
Our parliamentary system of government means there is an overlap between the Legislative and Executive branches.
Is this a problem?
Not necessarily because we have a system of checks and balances:
Bicameral system (two houses – the Senate acts as the ‘house of review’)
Responsible government
-Opposition party
- The Judiciary can declare actions of the Executive unlawful

40. JUDICIARY

41. How does the Separation of powers operate in Australia?
The independence of the judiciary:
The independence of the judiciary is crucial to the upholding of the Rule of Law, as it links closely with the presumption of innocence and natural justice. The judiciary must not be pressured or manipulated by the other branches of government to allow for independent decision making.
The independence of the judiciary in Australia is also linked with the Rule of Law because it acts as a system of checks and balances on the Legislature and the Executive. It can strike down laws made by the Legislature, and declare actions of the Executive unlawful.

42. How does the Separation of powers operate in Australia?
The independence of the judiciary:
The High Court of Australia provides one of the most important checks on the power of Government in Australia. It has the power to overrule the decisions of all lower courts and to declare laws invalid and actions of the Executive unlawful.
How is the Judiciary able to maintain independence?
Appointments are based on merit.
Judges receive security of tenure (a permanent post).
A judge’s pay cannot be reduced while they hold office.

43. How does the Separation of powers operate in Australia?
A true separation?
It has been argued that at the Commonwealth level, the Judiciary is more separate from the Executive than it is at a State level.
For example, within the Victorian State Government the Department of Justice (which forms part of the Executive) meets to discuss resource allocations to its various areas, one major area is the courts (i.e. The Judiciary). It is somewhat necessary, therefore, for the courts to frame their budget requests to fit with the policy framework of the Department of Justice. This means that there is a blur between the Executive and the Judiciary, as the courts are being influenced by the policy of the Executive.
At the Commonwealth level, the budget for the federal courts receive separate funding, and they are responsible for their own budget.

44. How does the Separation of powers operate in Australia?
A well-known example of the Judiciary keeping checks on the power of the Executive is the overruling of the ‘Malaysia solution’, by the High Court, in 2011.

45. Further reading for analysis part of your answer:
justices/mchughj/mchughj_paris.htm