Governance_in_Australia

Elliot Birch Politics and Law 3A/3B Investigation America and Australia Mr Parker Research Notes - America Representation: * The American system of the Electoral College Votes can give a disproportionate value to swinging states that hold significant power (ie. Have a large number of electoral college) * This can mean that states such as California, Texas, New York and Florida hold 27% of the vote (four of the fifty states have over one quarter of the vote) * This means that the Presidential candidates can heavily focus their campaigning on the larger states, and disregard the minor states – which can potentially lead to the larger states getting what they want, while minor states are completely disregarded * If a candidate wins by only a small margin, or any margin for that matter, they attain all of the electoral college votes that the state holds – This creates a very large and disproportionate winners bonus, which is undemocratic as votes won, should be transferred to electoral college votes attained, which would be a more democratic system * This can lead to an event where a candidate can win the majority of the popular vote from the entire country, but still lose the election – this occurred in the 2000 election when Al Gore won a majority over George Bush * Article II, Section 1, Clause 2 of the Constitution specifies how many electors each state is entitled to have and that each state's legislature decides how its electors are to be chosen – “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” * This means that the largest states have a major impact on the election outcome, and this can be viewed as a strength and weakness * The candidates can target their election campaigning directly at only a minority of the states, which is undemocratic as they are meant to represent the whole country and all of its people The Rule of Law * All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution; these oaths affirm that the rule of law is superior to the rule of any human leader * The rule of law is strongly based on the idea that no man can be above the law, although the President can ‘pardon’ people from offences (yet no one else can), he also has the power to initiate bills into Congress as he sees fit – this can be seen as a failure of the rule of law because no other individual in the country has the power to pardon or enter bills into congress, this does make the President more powerful and have executive rights over other citizens in the country * The Secretary General of the United States defines the rule of law as: a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency * The main argument that the Government is undermining the rule of law is that they are creating legislation, and abusing pre-existing legislation on being able to spy on their own law-abiding citizens of the US, especially since 9/11 – this is impeaching upon the legislative powers, this can be seen as a failure in the separation of powers, and therefore another weakness in the American democratic system * “We have been stunned to hear reports about the Pentagon gathering information and creating databases to spy on ordinary Americans whose only sin is to exercise their First Amendment right to peaceably assemble. Those Americans who choose to question the Administration’s flawed policy in Iraq are labelled by this Administration as “domestic terrorists.” – From US Senator Robert C. Byrd Judicial Independence: * “In democracies, independence from political pressures of elected officials and legislatures guarantees the impartiality of judges. Judicial rulings should be impartial, based on the facts of a case, individual merits and legal arguments, and relevant laws, without any restrictions or improper influence by interested parties. These principles ensure equal legal protection for all” – From the U.S. Department of State publication * The President selects the judges of the High Court, but they must be approved by the Senate, which is a more thorough and tried system than Australia * This is arguably a more democratic appointment process than Australia’s due to the scrutiny that the candidate must withstand from the Senate * The fact that the President has the power to select judges is very similar to Australia’s system of the Prime Minister selecting judges, although the American system has more credibility due to the fact that the President selects his federal judge then he/she is presented to the Senate for questioning and deliberation where they decide whether the candidate is appropriate for the job * Although it is highly frequent that the judge will be heavily selected for their partisan views, rather than their legal qualifications, which can lead to a ‘dumbing-down’ of the American legal system * This is a failure in the American (and Australia) appointment process because Justices are meant to be impartial, especially from and political persuasion * But unlike in Australia, where there is very rarely a rubber-stamp government, there is often a rubber neck in America, which diminishes the respectability of the Senates review of the judicial candidate as they will be swayed by their own personal and political opinion and obligations to their party Natural Justice: * Defined as the right of all individuals of access to court proceedings that enable them to argue their case before an unbiased judge, and where appropriate, be judged by their peers, it also requires that individuals have a right of appeal if the original trial contained legal flaws * The principles of natural justice (procedural fairness), have developed to ensure that decision-making is fair and reasonable for all citizens (equality and equity), it involves decision-makers informing people of the case against them or their interests, giving them a right to be heard (the ‘hearing’ rule), not having a personal interest in the outcome (the rule against ‘bias’), and acting only on the basis of logically probative evidence (the ‘no evidence’ rule) * This basically means that in order that for good governance all citizens of America need to be able to access the legal system and once they have accessed, it needs to be easy for the citizen to continue the case they have begun * Although this is relatively ineffective in America, as they do not have the same levels of equity as Australia does, as in indigent defendants or prosecutors are not supplied with a lawyer by the government if they cannot afford one * This is a residual power in America for the States to decide whether or not indigent defendants are supplied with a lawyer or not * In 43 States of America, indigent defendants are not supplied with a lawyer * With the overwhelming number of States which don’t supply indigent defendants with lawyers, this clearly needs to be dealt and resolved with in order for America to be able to say they are a well-governed country Exercising of Power: * The exercising of power in America, and more specifically the separation and division of powers, is not as effective in Australia due the Presidential Republic that America employs * The separation of powers is put into place to create a system of checks and balances on each of the branches and ultimately they are to limit the power of government and to create accountability * The President of America (Head of State and Government) has significant powers, and perhaps the most powerful of these is the power to select any one whom he wishes to fulfil federal portfolio’s * The fact that he can choose anyone whom he wants, can lead to an ill-informed or inaccurate appointment * The president can issue rules, regulations, and instructions called executive orders, which have the binding force of law upon federal agencies but do not require congressional approval * This means that the President can in fact force the federal agencies (such as the FBI, DEA and CIA) to investigate any issue which he wants ‘followed up’ * The presidential system does mean that there is a moderate level of arbitrary rule in the United States of America * The separation of powers in America is quite strong and in use, but the ‘weakest link in its armour’ is that bills can be successfully passed through Congress with relatively little scrutiny due to the fact that rubberstamp governments in America are relatively common * The President is also the Commander in Chief of the Army and Navy, this means that he has the power to enforce the American military on any country or region that he wishes at his own will, regardless of the rest of the country Research Notes - Australia Representation: * Representation in Australia is very democratic, as by the bicameral system using two separate electoral systems which advantage the views of the Constitutions founding fathers, and ensures are true representative democracy * The use of single preferential voting in the lower house ensures that the most “preferred” candidate is elected to parliament and that there will more often than not a majority party in the lower house * While the upper house uses multi-member proportional voting, which is the most appropriate electoral system for the Senate as it will ensure that a wide range of values, attitudes and beliefs are represented in parliament. It will also mean that the Senate will truly be able to act as a house of review as they very rarely produce a rubber-stamp * The electoral systems that the Australian system employs makes it very difficult for the Australian system to be undermined or corrupted; and in the strong defence to this, there has never been a large ‘scandal’ or ‘outrage’ in federal politics and government in terms of the electoral system * The electoral systems that are employed are also effective at creating the idea of ‘good governance’ as they are effective at keeping the government ‘accountable to the people’ * Both systems can easily be used to turn over the current government, if the public see fit The Rule of Law * The Australian Government strongly believes in the implementation of the rule of law and attempts to apply it to all facets of the country, and do this very effectively * Every Australia citizen, whether they are a ‘homeless’, a drug addict or the Prime Minister, are subject to the same laws, rights and restrictions in everyday life and they will be dealt with the same in regards to ‘breaking the law’ * In this sense, no one in the country is above or beyond the law * The rule of law has always prevailed in Australia, particularly in regard to any major issues in the country * Although, minor incidents can have a shadow cast upon them, such as the very recent example where a 36-year-old off-duty Sen. Const was recorded speeding at 172km/ph along Tonkin Highway, under new ‘hoon’ laws the officer should have had his car seized on the spot, but he was allowed to drive his car home, then place it in the ‘lock-up’ the next morning – here the officer has clearly been given ‘special’ treatment and the rule of law has failed to apply to this specific example * Another minor example where the rule of law has failed to apply has been legislation since 2001, that a suspected terrorist can be held by the AFP for up to 48 hours with no evidence required, this violates the rights of citizens, but does protect the country * An example of this is when Mohammed Haneef was held under this new legislation – He was detained for 48 hours in Brisbane upon presumptions that he was involved in terrorist activity involving his two cousins who were heavily involved in the London Underground Bombings – He was then proven not guilty yet he was denied the right of ‘presumption of innocence’ while detained which is a massive violation of his rights * A vital aspect of the rule of law is the separation of powers, this requires that the government be divided into three arms or branches (executive, judiciary and legislature) in order for the branches to run a system of checks and balances on each other; this is upheld in Australia to a great extent * The independence of the judiciary is the most important aspect of the separation of powers as it allows each person to be treated equally and equitably before the courts Judicial Independence: * The independence of the judiciary in Australia is vital to Australia’s system of government, it refers to two separate requirements: * Judges must be able to apply the law in any case without interference or pressure from legislators or from the executive * Individuals appearing before the courts may be able to appeal a decision to a higher court, but once finalised by the courts, parliament or the executive cannot overturn the application of the law in an individual case * Perhaps the weakest link in judicial independence in Australia is the fact the judges are meant to be free from any political persuasion or influence, yet the person vested with the power to select new High Court Justices is the Prime Minister * This means that there is a potential for the Prime Minister to select a Judge according to their political orientation and beliefs, not solely on their credentials as a former lawyer or judge * “Judicial independence does not exist to serve the judiciary; nor to serve the interests of the other two branches of government. It exists to serve and protect not the governors but the governed.” – This is a direct quote from the Hon Sir Gerard Brennan, Chief Justice of Australia * The above quote is a strong example of just how vital a judiciary that is independent of the entire government truly is, it is the single most important requirement for the rule of law to exist in a country, it will ensure that the citizens of a country will be fairly and justly ‘judged’ according the facts of a specific case, and only based on this, the judge (or jury) must remain impartial, and all citizens will be fairly dealt with according to the law * The only area in which the judiciary (more specifically the judge personally) fails to remain impartial is in regards to ‘adoption’ or parental disputes, as the judges have an overwhelming tendency to grant adoption to the mother, this does undermine the idea that all people should be treated individually and fairly in court without any prejudice * The judiciary is vital in holding the legislature and the executive accountable for their actions, they check and make sure that every bill, law and action are constitutionally and statutory legal, anyone from the public can argue against the constitutionality of a law Natural Justice: * Natural justice is the idea that all people are able to access the courts that enable them to argue their case before an unbiased judge and to appeal decisions made by the courts and may incorporate the following guidelines: * A Right to Advanced Warning. Contractual obligations depriving individuals of their Rights cannot be imposed retrospectively * A person accused of a crime, or at risk of some form of loss, should be given adequate notice about the proceedings (including any charges) * A person making a decision should declare any personal interest they may have in the proceedings * A person who makes a decision should be unbiased and act in good faith. He or she therefore cannot be one of the parties in the case, or have an interest in the outcome * Proceedings should be conducted so they are fair to all the each party to a proceeding is entitled to ask questions and contradict the evidence of the opposing party * A decision-maker should take into account relevant considerations and extenuating circumstances, and ignore irrelevant considerations * Justice should be seen to be done (and actually done). If the community is satisfied that justice has been done, they will continue to place their faith in the courts * An example where the theory of natural justice has been upheld in Australia is the Dietrich case of 1992 * Olaf Dietrich was unable to afford legal representation in the Victorian District Court and this was indirectly the reason he was found guilty of possession of drugs on entry to Sydney from Hong Kong * He appealed this to the High Court of Australia and the result was that indigent defendants must be granted legal representation by the state or federal government if they are unable to afford it * This made the Australian judicial system arguably ‘fairer’ and helps to maintain natural justice Popular Participation: * The idea of popular participation is that those who are affected by a decision have a right to be involved in the decision-making process, popular participation implies that the public's contribution will influence the decision * In Australia the way that this is achieved is through the employment of representative democracy, where the citizens elect a member to parliament to represent and reflect the electorates values, attitudes and beliefs in parliament, and always have their constituents opinions in their mind * The Australian political situation at the moment is one of a two-party system, where the parliament is dominated by the ALP (Labor Party) and the LPA (Liberal Party) * This two-party system which is heavily centered around a competition between the two, is weakening popular participation is Australia * Once a party has a majority in the lower house, they will immediately initiate their party policy into law, whether this is of the constituents will or not * An example of this is the WorkChoices Act (2007) which the LPA successfully got through parliament due to the rubberstamp government which existed * This act neglected many of the rights and laws that employees once had, and gave the employer a major advantage and a powerful position (with effectively the power to ‘sack’ anyone when they wanted, with no particular reasoning) * This was clearly not representative of the peoples beliefs, and this is what led to them losing government in the 2007 election, the democratic principle of popular participation was neglected here, and the opinions of the general public were shown at the next election * Exercising of Power: * Commonwealth State Concurrent powers (Shared powers Exclusive powers (Commonwealth only) Residual powers (State only) Exercising of power is closely related to separation and division of powers; whereby the powers of government is split into three arms of government which run a system of checks and balances on each other (the separation of powers) and is then in a Federation divided into State and Federal governments (the division of powers): * The fact that power is separated through many tiers of government shows that democracy is truly alive in Australia because this certainly opposes arbitrary rule * But, there is clearly an imbalance in the power of government, as the executive branch is the most powerful branch * They have the power to make decisions on all ‘supply’ bills (which is arguably the most powerful aspect of government) they also have the majority in the lower house which enables them to pass bills through the lower house (then most of the deliberation will occur in the Senate) * Arguably, the greatest ‘scandal’ in regard to the exercising of power was the Constitutional Crisis of 1975, when Sir John Kerr (Governor General) ‘dismissed’ then current Prime Minister Gough Whitlam * It is a power of the governor general to ‘dismiss’ the Prime Minister if he/she believes it is necessary, but it had generally been accepted that the governor general’s powers where more ‘symbolic’ or reserve powers * But after the ‘supply’ bill from Whitlam’s Labor government was rejected twice by the Hostile Senate the Governor General evoked his power and dismissed him Bibliography en.wikipedia.org/.../Powers_of_the_President_of_the_United_States www.presidentsusa.net/presidential_powers.html www.legal-dictionary.thefreedictionary.com/Presidential+Powers en.wikipedia.org/wiki/Movement_of_Popular_Participation pdf.wri.org/ddnr_full_revised.pdf www.odpp.nsw.gov.au/speeches/Newcastle17July2006.pdf wwwlib.murdoch.edu.au/adt/pubfiles/adt-MU20100331.../02Whole.pdf www.hcourt.gov.au/speeches/kirbyj/kirbyj_global2.htm Textbook: Power and Governance – John Willmott Book – Australia: The State of Democracy - Marian Sawer