Nature and Structure of Government in Australia

Commerce Notes

Nature and structure of government in Australia

Democracy: society based around the idea that a government’s power is derived from the will of the people and is exercised by them either directly or indirectly.
Federal Government: decides on matters that affect the whole nation. E.g. immigration, defence, foreign affairs, taxation, communication and quarantine.
To become prime minister, you need to rely on a majority of votes in the House of Representatives. A ministry is appointed for responsibility over various functions of government. Senior ministers are members of the Cabinet.
State Government: responsible for: e.g. health, water/power supplies, transport, consumer affairs, education and law and order. All state governments except Queensland consist of the Legislative Assembly and Legislative Council
Local Government: responsible for small areas e.g. local roads, libraries, child care, garbage collection, recreational facilities. An individual local government is called a shire/council.

Political action and decision making

Some issues will affect all Australians, but there are others that target specific groups, e.g. agegroups ( Younger Australians are affected by housing, interest rates etc. Older Australians will be affect by superannuation, pensioner benefits etc.
In a democracy, we have the right to voice opinions and protest if we do not agree with anything. We engage in political action to influence the decision making process. We can also influence the process by joining a political party, taking individual action, becoming an activist in interest groups, or contacting the media.
Interest groups can include trade unions, community based groups or professional or trade associations. Interest groups raise public awareness of an issue.
The media is the main means by which politicians communicate with the public and provide a public forum in which members may voice their comments and opinions.
Factors that often influence the decision making process are Governments, Business, Welfare organisations and the media.

Political parties

Labor Party: formed 1891. Representing the concerns of trade unions.
Liberal Party: formed 1944. Representing big and small businesses.
Nationals: formed 1919. Representing farmers and regional Australians.
Democrats, representing ‘ordinary’ people in policy development.
Greens, green activists from various environmental groups.
Independents tend to vote on the merits of a proposition.
Parties select candidates to contest elections for public office. This is known as preselection. These candidates must follow the party line and argue in favour of their policies.

Participation in democratic process

Right and responsibility of all Australians over 18 to vote in federal, state and local elections. Federal elections must be held at least once every 3 years.
Two methods of voting, first-past-the-post voting or preferential voting.
First-past-the-post is simply where the most favoured candidate wins. Used from 1901 to 1918.
In preferential voting, a voter must show their preferences by giving each candidate a number, in order of preference. For the vote to count, all candidates must have a number next to their name. If a ballot paper is incomplete, illegible or is missing a number, it is considered an informal vote, and not counted.
If candidates are numbered sequentially down the ballot paper, it is a donkey vote.
To win a seat in preferential voting, a candidate needs an absolute majority of votes (more than 50%) If no candidate has over 50% of votes, the candidate with least votes are eliminated, and that candidates votes are redistributed to all remaining candidates by their second preferences. This procedure is repeated until a candidate with an absolute majority appears.
Ensures the most widely preferred candidate is elected and minor political parties can still have an influence.
Optional preferential offers the voter a choice to either select just one candidate, or allocate preferences. In NSW’s optional preferential proportional representation voting system for the Upper House, a group (consisting of 15 candidates) determines the order of their own candidates. The position of the group is decided by a draw conducted by the electoral commissioner.
Two ways to vote, above the line and below the line. Above the line is done by placing a ‘1’ in the in the group voting squares, recording a vote for the first candidate, while the preferences go to the other candidates in that group. Below the line voting is where the voter selects their own order of preferences by placing the numbers 1 to 15 in order of preference.
To be elected, candidates must obtain a quota (4.5% of total formal votes). Any votes a candidate receives above the quota are known as surplus votes and may be distributed to remaining candidates in order of preference.

Interest groups

Interest groups are often compared to political parties because both are organisations that communicate the views and concerns of citizens to governments.
Interest groups are set apart from policital parties as they: do not seek to win elections. Often campaign continuously on issues, whereas political parties tend to be most active before elections. Interest groups are more issue orientated than political parties and depend on supporters, while political parties depend on mobilising voters.
Two main types of interest groups. Sectional and promotional groups.
Sectional groups aim to promote the interests of specific sections of a community and include trade unions, professional associations, religious organisations, motorist groups, pensioner groups, ethnic associations and business/farming groups.
Promotional groups seek to promote a particular cause, e.g. environmental and moral issues.

Strategies of interest groups

Deputation to members of parliament – a small group meets with a member of parliament, who then approaches the relevant minister or raises the issue in parliament.
Direct appeals to ministers
Petitions to parliament
Letter writing
Advertising
Protests and demonstrations
Legal intervention
Direct political intervention

Advantages for interest groups Disadvantages to interest groups Allows people to participate in the process May not be run democratically

Representing minority groups with little influence May put own interests before majority’s

Educates public on certain issues Some groups have greater influence

Highlight ignored problems May offer one-sided or biased information

Keeping check on government actions

Informing government of electorate’s feelings

Law and Society

The legal framework

Laws exist to regulate our society, designed to protect us and our property and to ensure that people behaves the way the community expects them to.
Regulations: similar to rules but are more general and less specific.
The law is not specific and applies to all of us all the time.
Hierarchical court system, court is graded into inferior and superior courts, each dealing with different matters.
Courts are generally the final place to settle legal disputes, and people are encouraged to use all other legal options first. If this fails, courts are used to reach a legally binding decision.
The most inferior court in Australia is the local court, presided over by a magistrate. This court aims to deal with matters quickly and cheaply. Deals with minor criminal offences (summary offences) and conducts committal proceedings foe serious matters (indictable offences). The aim of this court is to determine whether there is enough evidence to make a case. If there is, the case will be moved to a higher court.
The district court is a more senior court and is presided over by a judge, dealing with serious and civil law matters. Includes a jury of 12 people.
The supreme court is the highest court in the hierarchy system, hearing the most serious cases and those that involve difficult points of law. Its’ decisions can create common law.
If a legal matter involves an aspect of federal law it will be dealt with by a federal court. Deals with taxation, immigration, copyright and companies.
The High Court of Australia is the most senior court in Australia, used to ensure that law-makers do not breach the constitution, but also hears appeals.
Judges and magistrates are the presiding officers of a court. In a criminal law matter, a magistrates’ role is to determine whether the accused person is guilty of a crime. A sentence is then issued if found guilty. In civil law matters the magistrate arrives at a verdict and decides on any compensation.
Judges’ role in court is to instruct the jury on legal matters and if found guilty, to impose a sentence.
In every case, there are two opposing legal teams. The prosecutor’s role is to prove to the court that the accused is guilty and should be punished. The defence is there to help the accused show that he was innocent, or to reduce the sentence imposed by the court.
The jury consists of 12 adults randomly chosen from the community. The role of the jury is to determine whether the accused is guilty. In order to convict a person, the jury must be satisfied that the evidence presented shows that the person is guilty beyond reasonable doubt. If a juror has any doubt about the accused guilt, the juror must find the accused not guilty.
Juries are used in all criminal cases, but have no role in passing sentences. In some serious civil matters, only 4 or 6 people are used. In cases in NSW, there must be a unanimous verdict.

Areas of Law

Laws are generally generalised into two groups, public law and private law. Public law deals with the standards of behaviour that society expects from its government and people and those who work within the government. Includes criminal, constitutional and administrative law. Private law (civil law) deals with the way individuals interact with each other, including laws that regulate the behaviour of people towards each other, and the behaviour of businesses.
Criminal law is to protect the public from harm. If a person breaks a criminal law, they are considered to be harming all members of society. The police investigate the matter and bring the case against the accused.

Crimes against person –
Homicide – intentional killing of another
Manslaughter – accidental or justifiable killing of another e.g. in self defence
Assault – causing or threatening to cause injury to another

Crimes against property -
Larceny – removing a person’s property without their consent
Break and enter – illegally entering someone’s property without their consent
Robbery – using violence or threat of violence to take another person’s property

White collar crimes – usually committed by professional people and are not associated with violence or damage to property, such as tax evasion and computer hacking.
Crimes against the state (country) –
Sedition – encouraging a hatred of the state
Treason – If a person or organisation actively tries to bring about the collapse of a government or assists the enemies of a country

Public order offences – crimes that disrupt activities of our society. They can include swearing in public and being drunk or disorderly.
Traffic offences – Most widely committed offences in our society. Involves crimes such as speeding or driving without a seatbelt. Most of these are dealt with by on-the-spot fines, but more serious offences, e.g. drink-driving, result in court proceedings

The constitution

Constitutions are documents that set the rules outlining how a government should be run. The Australian Constitution does not contain the rights of the Australian citizens. Most of our rights come from statute and common law. The Australian Constitution outlining the powers of the Commonwealth and State governments and details how power is to be divided between the three governments (local, state, federal).
The powers that were transferred from the states to the Commonwealth government are referred to as exclusive powers. The most important, external powers, deal with other nations e.g. customs, foreign relations, defence, rights to enter into international agreements.
Powers shared between state and Commonwealth government are concurrent powers
One of the most important aspects of our constitution is that no one person or group can take control of Australia, and therefore separates the powers between the three most important groups in the ruling of Australia; the executive, the legislature and the judiciary.
Administrative law deals with the rules regulating the powers of government agencies and departments. When the government creates a department, it is done so through the making of a statute law, outlining the role and powers of the department.
Civil law governs the legal relations between individuals and organisations. Civil law matters are launched by individuals or organisations who feel that they have been wrong by actions of others. No criminal activity is involved. The person bringing the case is the plaintiff, who must prove that the defendant has wronged them in some way.There are three main areas of civil law:
Contract law – A contract is a legally binding agreement between two parties. The majority of civil law cases involve contracts.
Property law – Property is anything that can be bought and sold. Laws govern the way goods are to be purchased and the way people or organisations must behave.
Tort law – Torts are civil wrongs, involving actions of people that cause discomfort to others. There are 4 main types of tort law.
Negligence – a lack of duty of care
Nuisance – when a person interferes with other’s rights
Defamation – when one’s reputation is damaged by another
Trespass – when property is interfered with

Family law is the body of law that regulates marriage and divorce, the relationship of parents with their children, and other family issues (adoption, etc) Greatly influenced by moral values of society. Dealt with in the Family Court of Australia.

Making Laws

English Common Law based on laws coming from two sources, statute and common law.
Statue law involves parliament passing a Bill (proposed law).
Common law is based on the ruling of judges and is used when there is no appropriate statute law. When a judge makes a decision in relation to the matter, all lower courts must follow that decision, known as following precedent.
Common law is more easily changed than statute law. To ensure important common laws are not lost, many common laws are changed into statute law.
Morality can be considered as doing ‘good things’. There are two types of morality: private and public. Private morality refers to values we each have personally. Public morality refers to the values that are held by society as a whole.
Ethics relate to what is ‘right’, which may not always be good. E.g. a lawyer defending a guilty client
As the influences on our society change, so do our ethical and moral values.
In order to change statute law a new bill must be passed by the relevant parliament. These bills are known as amendments and must go through the same process as any other bill. There are commissions who provide advice on which laws may be out of date and need changing.
A common law can be changed by the decision of a judge in a higher court.
To change constitutions, a referendum must be held. More than 50% of the country in at least four of the states must agree for the change to take place. A bill must be passed before the referendum is held.

Using the legal system

We do not have a right to have a lawyer in court, we may choose to represent ourselves, but we do have a right to a fair trial.

Legal Aid

To ensure people obtain fair treatment from the legal system, the Whitlam government introduced legal aid. Each state has a Legal Aid Commission, whose role is to provide legal assistance to people who cannot afford a lawyer. Anyone can gain 15 minutes of free legal advice.
If further advice is needed, the applicant must pass several qualifying tests
Means test – Assesses whether the person is able to afford to pay for a lawyer.
Merit test – Assesses the likelihood of the case succeeding.
Jurisdiction test – Whether the case is provided by Legal Aid (criminal, family and certain aspects of civil law)
Children have an automatic right to Legal Aid
There are four factors that we must consider to determine a person’s ability to access the legal system; cost, time, procedures and language.

Law in Action

Legal capacity is the legal rights and responsibilities that come with the age of a person.
The age of majority, that is, the age at which the law recognises the person as an adult.
Legal capacities
Be convicted of a criminal offence : > 10 years
Receive a criminal record : > 16 years, except in cases of serious crimes
Leave home : > 16 years
Stop attending school : > 14 and six months
Get a job : > 15 years
Drive : > 16 years
Marry: > 16 years
Drink alcohol: > 18 years

Laws placing certain restrictions on the type of activities young people can do are called public behaviour laws.
If an accused in under 18 years, the case is heard in the Children’s Court.

To prove that a person is guilty, the prosecution has the responsibility called the burden of proof. They must prove the accused had:
mens rea – meaning the accused had a guilty mind, committing the illegal act with intent, recklessness or negligence
actus reus – the prosecution must show that the accused is the person who committed the crime.
If a person has mens rea, but not actus reus, it is considered a conspiracy.
Penalties:
Imprisonment: Offender is held in prisoner for a set period of time
Fines: Offender is require to pay money
Bonds: Offender must meet certain conditions. Failure do so will result in punishment
Home Detention: Offender must remain at home for a period of time. If they leave the home, they will be sent to prison
Community service orders: Offender is to work for a community organisation.
Periodic Detention: Offender attends prison at regular intervals.
A contract in civil law is a legally binding contract. If you sign a legal contract, we become party to the contract and are now liable for the contract, that is, we must do what the contract states.
Before a contract becomes legally binding, a number of steps are taken, known as the elements of the contract:
The offer – one party offering something to another party.
The acceptance – the accepting of the offer that has been made, some negotiations would have taken place.
The consideration – a legal principle that states that a contract should benefit all the parties involved.
A guarantor is someone who guarantees to pay the loan should the borrower be unable to.
Negligence is the failure to exercise a duty of care to others and their property. Two key factors are required to sue for negligence.
That the accusing party was owed a duty of care by the negligent party
That the negligence has resulted in the accused party suffering an injury or hardship

Rights and responsibilities