Law Government and Policy in Australia - Assignment Example

Australian System Running Head: AUSTRALIAN SYSTEM OF GOVERNMENT Australian System of Government May 21, 2008 Australian System 2 A Q Australian is often described as having a liberal democratic system. Briefly describe what is meant by this term, and then identify and discuss features of the Australian system which is NOT consistent with this philosophy. Ans: Liberal democracy, according to writer Bradley Watson is a paradox. It is a paradox because whilst the term ‘democracy’ refers to the consent of the governed and which consent is largely hinged on the fact that all the governed individuals are equal politically, the term ‘liberal’ implies the respect for the ‘individual qua individual.’ Liberal democracy therefore refers to a system of government where the people make the basic decisions but there is a limit as to the kind of decisions that they can make (Watson 1999). In practical terms, a liberal democracy is one that has “free elections, a multiplicity of political parties, political decisions made through an independent legislature, and an independent judiciary, with a state monopoly on law enforcement” (Encarta 2007) The characteristics of a liberal democracy are the following: the popular election of the country’s officials; the rule of the majority; the recognition of the rights of the minority; the adherence to a constitutional government which means that the government is one of laws and not of men; a multi-party system; an open, public race for electoral office on the basis of an accepted procedure; periodic elections; existence of pressure groups to influence the government; recognition of civil liberties; substantial independence from government control; separation of powers in some form; the control of the legislature over the executive; independent judiciary; flexibility of political conditions during emergency (Mahajan 2007). Australian System 3 Australia, which is referred to as a liberal democracy, has some features that do not coincide with the concept. For one, popular elections are limited to the legislature. Although the head of the executive branch, the Prime Minister, is elected as a member of the Parliament, and not as head of the executive branch nevertheless automatically ascends to such position by virtue of being the head of the majority party. The multi-party system is likewise limited to the Senate and only emerged as a result of the system of proportional representation. In the House of Representatives, the two-party system is still followed. Likewise, the separation of powers is qualified and limited. Although the Constitution provides a system of separation of power, the executive is not really independent from the legislative because all the members of the executive branch must come from the Parliament, is accountable to it and therefore can be recalled anytime by it. In addition, Australia has passed laws recently that are not consistent with liberal democracy like the Anti-Terrorist Act of 2005 which gives the police, among others, the right to ‘shoot to kill’ as well as detain longer, up to 14 days, suspected terrorists without bringing charges. Some cases bordering on violation of human rights have been committed by the Australian government. The case of Dr. Mohammed Haneef in 2007, for instance, who was a former Indian national possessing a valid Australian visa, was deported on the suspicion that he was abetting a terrorist activity in the UK because his Sim card was found in the vicinity of the crime (Deva 2007). Australian System 4 B Q1 Define both the natural law and legal positivistic approaches to the role of law. What are the major differences between the two approaches? Ans: The concept of legal positivism formulated by the English jurist John Austin stated that: “The existence of law is one thing, its merit and demerit another. Whether it be or be not is one enquiry, whether it be or be not is conformable to an assumed standard, is a different enquiry.” Legal positivism thus, subscribed to the theory that the existence of a law depends on the structures of the governance at the time of its enactment (Green 2003). Natural law on the other hand, is the theory that subscribes to the notion that law is necessarily tied to justice and morality (Murphy 2008). The differences between the two approaches are: the natural approach always ties the law to justice and morality while legal positivism is not concerned with them albeit that the law may be coincidentally moral and just; natural law aims to be redemptive while legal positivism aims to be empirical (Carney 1999); legal positivism endorses a process-oriented approach to law because the validity of the law, from its perspective, depends on following the set of rules. On the other hand, natural law is results-oriented in that the law must be able to satisfy the notions of justice and morality. Thus, the legislature must enact laws that are inherently just and moral while judges must deliver decisions tempered by justice and morality (Banks 1997). Q2 What did the High Court decide in the Mabo case? And why was it so significant? Ans: The Mabo case concerns ownership of the Murray Island located in the Torres Strait between continental Australia and Papua New Guinea. Mabo and company, natives of Australian System 5 Murray islands, sued Queensland on account of a law called the Queensland Coast Islands Declaratory Act 1985 which sought to grant titles to lands in the islands. Mabo’s position was that the land was theirs by reason of native title, having possessed it since the beginning and Queensland’s position was that the Crown acquired absolute ownership of all lands when Australia became England’s colony. The High Court held that the Merriam people, having held the land even before it had been annexed as a colony had common title to it. This means that the High Court has rejected the concept of terra nullius, a doctrine originating in the 16th and 17th centuries that a land not owned by a sovereign recognized by the European powers is no one’s land and therefore open to claim. The Court also declared that the Crown did not acquire absolute title over the lands but only a radical right, subject to native title. The significance of this case is that it represents the shift or change in the way Australian society and the judiciary looks at indigenous people.. Q3 Explain the courts’ needs to interpret legislation, and the main rules now used to guide that interpretation. Ans: The necessity of interpreting the laws by the courts was expounded by Chief Justice John Marshall of the United States Supreme Court. He said, to the effect, that courts need to interpret the law because it is their duty to apply it to specific cases. Courts need to decide if a law conflicts with the Constitution or if two laws are in conflict with each other and decide which takes precedence (Feinman 2006). Australian System 6 In interpreting the laws, the courts are guided by the basic rules of statutory interpretation. In the case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, the High Court threw away the doctrine of reserve power which states that the drafters of the Constitution meant its restrictive interpretation to give advantageous positions to the residual powers of the states (Harris 2002). Some of the basic canons of statutory interpretation are: a need to be aware of the juridical nature of the law; the plain meaning rule, implyiing that a law capable of one interpretation needs no further constructions; the commonsense construction rule, which means that a law capable of two or more interpretation, that interpretation which would give effect to the legislative intent should be adopted. The Interpretation Act of 1978 also lays down the rules of statutory interpretation (Roscoe 2001). Q4 Define what is meant by each of the following, and for each, identify what parts of the Australian Constitution are relevant: (a) the separation of powers principle (b) the federal separation of powers. Ans: The doctrine of separation of powers states that the judiciary, the executive and the legislative branches of the government must be separate from each other. The reason according to French thinker Montesquieu is that there is no true liberty if they are not. If the judge is also the legislator he would have arbitrary control, if the judiciary is united to the executive, the judge “might behave with violence and oppression” (Campbell & Lee 2001). In Australia, strict separation of the three is not followed because the system is patterned after the English Westminster System of the British (Buckley & Conomos 2001). Australian System 7 The federal separation of powers is a doctrine, applicable in federal systems of government, states that there is separation of powers between the national (or federal level) and of the states (or regions). The federal normally cannot interfere in the business of the state while citizens can seek aid in one level if dissatisfied with the other (Spagnoli 2003) In the Australian Constitution, the separation of powers doctrine can be found in Chapter I (s. 1 to 60), Chapter II (s. 61 to 70) and Chapter III (s. 71 to 80) corresponding to the Parliament, the Executive Government and the Judiciary, respectively. The federal separation of powers is laid down by Chapter V of the Constitution consisting of s. 106 to 120. Q7 Explain the theory of responsible government. What factors indicate that Australia does not have a system of responsible government? Ans: The doctrine of responsible government states that : “the executive government be drawn from the members of the legislature and be responsible and accountable to it, as well as to their electorate as members of the Parliament; that the Prime Minister be the leader of the party that commands a majority in the parliament (or in the House of the Representatives, rather than the Senate or state’s chamber, in the case of a federal system); that the Prime Minister appoints his cabinet of ministers, who likewise must be members of the parliament” (Buckley & Comomos 2001). The doctrine, also known as the Westminster system, originated from the British and was exported to Australia. Due to of its federal system of government, Australia has features that are alien to the system of responsible government. First, the British has a unitary system of government whilst Australian System 8 Australia has a federal system of government which means that there are two levels of governance in the country. Second, although both Australian and British Parliaments are bicameral, the Australian system is more akin to the US than to the British. Both houses of the Australian Parliament are elected whilst the British has a house which is made of bishops and appointed members. Q8 How have minor political parties been able to wield power and influence in Australian politics? Ans: The Australian system of government has allowed a proportional representation in the Senate. Thus, although the House of Representatives is a two-party system, the Senate has a multi-party system. Minor parties have played a balancing-of-power between the major parties in the upper house since 1948 (Keating, Patrick & Patrick 2001). The minor parties often allow themselves to align with a party either to oppose and defeat a majority party or to ensure that a proposed bill wins. In 1993, for example, the Labor Party presented its annual budget to the Senate. It was a rather unpopular budget and the Greens and the Australian Democrats had already agreed that they would oppose the bill. The power to break the impasse and pass the budget rested in the hands of the minor parties and an independent, Brian Harding. Labor was compelled to negotiate with the minor parties and the independent party to finally pass the budget. Likewise, in 1999, a similar incident took place in the Senate in the passing of the Environment Protection and Biodiversity Conservation Act of 1999 of the Coalition parties which saw amendment at the initiation of the minor parties, who once again, played the balancing act (Keating, Patrick & Patrick 2001). Australian System 9 References Blanks, Elizabeth. (1997). Rights Vs. Responsibilities: The Supreme Court and the Media. Greenwood Publishing Group, p. 12. Buckley, Brad & Conomos, John. (2001). Republics of Ideas: republicanism, culture, visual arts. Pluto Press Australia, p. 153 Campbell, Enid Mona & Lee, H.P. (2001). The Australian Judiciary. Cambridge University Press, p. 36, 39 Carney, David E. (1999). To Promote the General Welfare: A Communitarian Legal Reader. Lexington Books, p. 13 Deva, Sonya. (2007). Keeping Australia Safe by an Improper Exercise of Power? OnlineOpinion. Retrieved May 11, 2008 from http://www.onlineopinion.com.au/view.asp?article=6173 Feinman, Jay. (2006). Law 101. Oxford University Press, p. 30 Green, Leslie (2003). Legal Positivism. Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/legal-positivism/ Harris, Bede (2002). A New Constitution for Australia. Routledge Cavendish, p. 132 Keating, Michael & Wanna, John & Weller, Patrick. (2001). Institutions on the Edge?:Capacity for Governance. Allen & Unwin, p. 173 Liberal Democracy. (2007). Encarta. msn. http://encarta.msn.com/dictionary_1861696490/liberal_democracy.html  Mabo and others v. Queensland (No. 2). (1982) 175 CLR 1, (1982) HCA 23 Australian System 10 Mahajan, Vidya Dhar (2007). Political Theory. S Chand Co. Ltd. p 814 Murphy, Mark (2008). Natural Law Tradition in Ethics. Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/natural-law-ethics/ Roscoe, Francis & Bennion, Alan. (2001). Understanding Common Law Legislation: Drafting and Interpretation. Oxford University Press, pp. 86-88 Spagnoli, Filip. (2003). Homo democraticus: On the Universal Desirability and the Not So Universal. Cambridge Scholar Press, p. 453 Watson, Bradley C. S. (1999). Civil Rights and the Paradox of Liberal Democracy. Lexington Books, p.3. Read More