Lecture 3 - Professor Mary Walsh PDF

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Lecture 3 The Constitution & The Legislature   Intro/Aim of Lecture/Week  Understand what the Constitution is, how it emerged, what it says, what it doesn't say and the difference between the separation of power and the division of powers.  Have a general understanding of key ...

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Lecture 3 The Constitution & The Legislature Intro/Aim of Lecture/Week  Understand what the Constitution is, how it emerged, what it says, what it doesn't say and the difference between the separation of power and the division of powers.  Have a general understanding of key sections of the Constitution.  Be able to consider the relevance of the Constitution for government and democracy in Australia.  Understand the bicameral nature of the Australian Parliament.  Understand the roles of the House of Reps and the Senate.  Understand the legislative process in the Australian Parliament.  Have a sense of why some people consider Parliament as a waste of time and why other do no.  To know what the constitution says, but more so what it doesn't say. Current Issues  Non-recognition - indigenous politics and constitutional recognition 1967-2017  Racial Discrimination Act 18C & 18D  Don Dale detention centre - 8 August 2016  Bill Leak cartoon 10 August 2016  Responses by Noel Pearson and Marcia Langton  2017 SSM  2017 Dual-citizenship and our politicians - is it a constitutional crisis? The Constitution  What is the Constitution?  How did the Constitution emerge in Australia?  Responsible Westminster government and federalism.  Separation of powers and the division of powers.  What does the Constitution say?  What doesn't Constitution say?  What are the implications of what the Constitution says and doesn't say? How did it emerge?  Debated for more than 60 years before it happened.  Delay reflected the values of the various colonies.  In the 1890s, the colonies were deeply suspicious of an over-arching government of 'Australia.'  Sir Henry Parkes a key advocate for creating a Commonwealth of Australia.  A great deal of rivalry between the states.  Brought together eventually due to concerns about defence, immigration and growing sense of national pride. Responsible Government and Federalism  The Australian Constitution is influenced by the British Parliamentary system (responsible government).  Elected Parliaments represent citizens and act as a law making body.

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Citizens do not elect member of Cabinet directly - instead we vote for individuals who decide who will form the Cabinet - comprised of the PM and senior misters. Cabinet must be supported by Parliament. Federalism is a political solution for peacefully combining separate and independent communities into a single nation.

Separation of Power and the Division of Powers  In liberal democracies, power is separated between the executive, legislature and the judiciary based upon the fear that a concentration of power leads to political corruption (acts as a check and balance).  The separation of powers limits the power of all the actors in the political system.  The division of powers refers to a system in which power is divided between a national, or federal, level of government and regional levels of governments.  Both levels of government are protected so that they can maintain their independence and sphere of authority.  Separation - think executive, division doesn’t have an 'e' therefore not executive. Issues - Separation of Powers 1. The High Court (21 August 2011)  Malaysia Solution  Full bench of High Court rules against Malaysia solution - injunction.  Federal government on hold.  High court argues that the deal interferes with the right to liberty, freedom of government and freedom from assault.  Because of what happened between Abbott and Gillard with the blocking of the Malaysia Solution, the ALP now is somewhat retaliating and blocking NLP policy.  Payback politics.  Abbott admitted 5 years later that he should have supported Gillard and the Malaysia Solution, in the executive power against the judiciary. 2. Gillard's Misogyny Speech (Tuesday 9 October 2012)  The federal court had not made a decision on the Slipper case on Friday 5 October 2012.  Separation of powers prevented the Gillard government from "sacking" Slipper.  Constitutionally it was not legal to do so. What does the Constitution say?  Divided into a preamble, eight chapters and a schedule.  Chapter one on Parliament, and divided into 5 parts (General, The Senate, The House or Reps, Both Houses of Parliament and the powers of Parliament.)  Chapter One is the largest chapter in the Constitution comprising sixty of the 128 provisions.  Chapter Two is on executive government.  Chapter Three is on the Judicature.  Chapter Four on finance and trade.  Chapter Five is on the States.  Chapter Six New States.  Chapter Seven covers miscellaneous matters.  Chapter Eight deals with exclusively with altering the Constitution.

What DOESN'T the Constitution say?  It does outline the formal institutions of government, including the GG, the Parliament, the bureaucracy and the judiciary.  Conventional practices are also important to the Australian political system although they are not mentioned in the Constitution.  These normal, informal practices are referred to as conventions (based on how things are actually done).  The Constitution does not mention the Cabinet, the PM, the effects of political parties is not recognised, as is silent on citizens rights and media. Implications of what is said and not said  Parkin and Summers (2006) have argued that whilst the Australian Constitution is a formal document, it is important to understand the Constitution as existing within a broader constitutional framework.  The formal document provides the framework for understanding institutions and the rules by which those in government govern.  It determined who has legal authority over matters and provides accountability for members of the federal political executive.  There are also many informal arrangements that complement the written document. The GG  Sections 2-6  Appointed by the Queen as her Majesty's representative in the Commonwealth with powers and functions assigned by the Queen.  In reality, it is the PM who selects the GG The Senate  Sections 7-23  The Senate was created to protect the Australian States and the state level of government as a whole.  The Senate is comprised of Senators from each State directly chosen by the people.  Each State is represented by 12 senators and 2 senators represent each territory.  Elected for terms of six years and in elections only half of the positions in the Senate are contested.  If a Double Dissolution occurs then all the Senate seats are contested an the senators are equally divided on an issue - it is resolved in the negative. The House of Reps  Sections 24-40 Commonwealth/State Powers  Sections 51, 52 & 109 Disagreement between Houses of Parliament  Section 57  Provides a way to resolve deadlocks between the House of Reps and the Senate.  A deadlock can be resolved by a double dissolution.  If after an election, the Senate again refused to pass a bill, a joint sitting of parliament may be called to consider the proposed law.

The High Court  Sections 71-80  In the Westminster system power is separated between the executive, legislature and judiciary.  If conflict arises between levels of government the High Court under section 73 of the Constitution has the power to intervene acting as an umpire to resolve the dispute.  High Court judges are appointed (not elected) and this has been the basis of some conflict between the executive and legislative arms of government.  High Court judges have tenure until they are 70. Financial Assistance on States  Section 96 Alteration to the Constitution  Section 128  Any issue for amendment must be put to the Australian people as a referendum.  These proposals must be supported by the majority of members of each houses of Parliament and must be supported in a referendum by a majority of voters and by the majority of votes in a majority of States. Relevance to Government  Yes? o Because it provides the foundation of our political system. o Because Constitutions are crucial to creating governments and establishing the values of the political system.  No? o Because the Constitution is outdated. o Because the Constitution doesn't even mention our most vital institutions of government. Relevance to Democracy  Yes? o Because the Constitution ensures that members of the federal political executive remain accountable. o Because the separation of powers and the division of powers ensures that no one level of government usurps the democratic rights of others.  No? o Because it was never relevant to democracy. o Because it doesn't even have a Bill of Rights. The Constitution and Indigenous People  Key issue now.  S51xxvi - race power allows Commonwealth to legislate in regards to "any race for whom it deemed necessary to make special laws."  Government was asked to remove s25 and aspects of s51.  Remove s51xxvi and s25 are outdated racism.  New section 116A.  Race question - how to be fair to all citizens?  If remove some sections - can the Federal Government still legislate for laws affecting indigenous people?

Constitutional Recognition  In the last five years, each federal government has produced a report via an expert panel of Indigenous recognition in the Constitution and yet still no progress has been made.  Gillard Government - Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Pane; (Jan 2012)  Abbott Government (June 2015)  Turnbull Government (June 2017) Dual Citizenship 2017  Section 44 part (i), of the Australian constitution is very clear: any person who is "under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights of privileges of a subject or citizen of a foreign power"…"shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives."  The High Court has bundled together all dual citizenship cases. The Legislature  The public face of Australian government.  Preferential voting.  Proportional representation. The Passing of Legislation: from Bill to Act  Notice of bill appears in the Notice paper for the next days sitting.  Bill is read for the first time.  After the first reading, the bill is read for a second time usually by a Minister, except if it is a private members bill, setting out the background and setting of the bill.  Debate on the bill is adjourned for a later date second reading debate continues and amendments may be proposed and moved.  Bill is then read a third time in the House of Reps or Senate and if passed is signed off by the GG. Is the Parliament a Waste of Time?  Yes? o Lots of old, white, middle class men. o Lots of men being real men, even some of the women. o Lots of arguing and contesting. o 'Battle.' o Lots of people not paying much attention. o Nobody really cares what anyone else is arguing. o Having the numbers  No? o Politically and socially important debates o Passing laws o Accountability o Parliamentary committees o Parliament as a testing ground o Parliament and party members morale

Exam Summary  The 2010, 2013 and 2016 Federal elections.  The role of the GG and parliamentary reform.  Understand what the Constitution is, how it emerged, what it says, what it doesn't say and the difference between the separation of powers and the division of powers.  Have a general understanding of key sections of the Constitution.  Be able to consider the relevance of the Constitution for government and democracy in Australia.  Constitutional reform and Indigenous Australia 2012  2017 Dual citizenship.  Understand the bicameral nature of the Australian Parliament.  Understand the roles of the House of Reps and the Senate.  Understand the legislative process in the Australian Parliament.  Have a sense of why some people consider Parliament as a waste of time and why others do not.  Not going to ask about what a specific section of the constitution says.  "Is the constitution relevant today?"...