LAWS1115 Lecture 12

Course summary

Exam format

  • Worth 70% of your grade.
  • 90 minutes and 10 minutes perusal
  • Three questions
    • ‘Advocate a position’ – first part of the course
      • Don’t tell a position. Argue for the position in a balanced way
      • If there are weaknesses, address them!
    • Mini-hypothetical (‘advise on validity’)
      • There will be an alternative essay. Only do one.
    • Essay (descriptive and normative)
  • The following are not examinable:
    • Professor Allan’s lectures and tutes on BoR, nature of rights, judicial power with regards to rights.
    • Freedom of information
    • Specific readings from the second half of the course are not examinable (Clark’s chapters 8 and 13)
  • The following are assessable:
    • nature of constitutionalism;
    • the rule of law;
    • written constitution vs. unwritten constitution;
    • rigid vs. flexible constitution;
    • parliamentary sovereignty;
    • separation of powers;
    • federalism;
    • Problems: VFI, tax and spending powers;
    • representative democracy and government;
    • structure of parliament;
    • basic electoral and political rights;
    • implied right to political communication;
    • executive power and its accountability;
    • role of parliament and ombudsman;
  • Sovereign is the source of ultimate power previously
  • No representation without taxation – no government delivers or can deliver without taxation
  • PPL is about power and accountability
  • Required reading summaries!

Tips

  • Closed book (language dictionary permitted)
  • More interested in key issues, principles, gist of law and institutions – than citing section numbers etc.
  • Don’t be blank: credit is given for relevant background material
  • Star with the question you are most comfortable with but leave good time for others.
  • Manage time: easier to get first half of marks for any question than the last few
  • Use perusal to plan structure for a couple of answers

Mini-hypothetical

Under pressure from Greens and Independent MPs, the new Australian government proposes legislating a cap on political donations. No one will be able to donate more than $100 per year to any party or its candidates. Corporations and non-citizens will not be able to donate anything to parties or candidates.
Discuss the constitutional validity of such a law

Sorry. I was looking for my water bottle. But Graeme is putting the suggested answer up on blackboard tonight!

Freedom of information

  • Origins in US ideas
    • ‘Government in Sunshine’ – being disinfected …
    • Open government as an aspect of accountable government
  • Knowledge as a form of power
  • Useful for media, opposition groups
    • Sometimes for lobbyists, litigants
    • Individuals to obtain personal information

Freedom of Information Process

  • Duty to give access unless exempt:
    • Written request
    • Host of exemptions
    • Form of access
    • Subject to payment of fees
    • Right to refuse (eg. unreasonably large request)
  • Freedom of Information Act 1982 (Cth)
    • Similar Acts at state-level
    • Key is Part IV ‘Exempt Documents’
      • Obvious categories – security, policing
      • Cabinet documents
      • Controversially ‘conclusive certificates’
      • (Others) personal privacy or commercial confidence
    • Can seek AAT review to argue documents should have been released (eg. public interest in disclosure)
      • In Qld, go to Information Commissioner
  • FoR does not equal ‘free’ information
    • Processing fees may apply, including:
      • $20 per hour to decide whether to grant a request;
      • $15 per hour to search for or retrieve the document;
      • photocopying, postage; or hourly charge to supervise you reading documents.
      • Agency must provide estimate of costs.
      • Fees may be waived on grounds such as (a) financial hardship; (b) public interest or (c) other grounds (eg reasonable request for Centrelink personal records)

FoI and the Information Age

  • Improving flow
    • Reform proposals in recent years: ‘push’ rather than ‘pull’ approach
    • Emphasising pro-active release of key information by agencies.
  • Challenges
    • Wikileaks – outflanking FoI?
      • Private FoI for governments and corporations worldwide?
    • FoI distinct from ‘whistleblowing’
      • Public servants can only ‘leak’ information with ministerial approval.