Laws1115 Pros And Cons

Federalism

What is the current system?

Nominally autonomous states with their own (generally bicameral) Parliaments with plenary power subject to the constitution. Free trade within Australia, common tax rates, strong federal government controlling weaker state governments via funding/constitutional interpretation.

What are the pros of the current system/cons of alternate systems?

  • “competitive federalism” – states can trial different ideas easier and cheaper than the federal government can experiment, scrapping the failures and refining/adopting the successes of others.
  • “preference federalism” – citizens limited or strongly opposed to a particular law or legal landscape can choose the state that best suits them without discrimination or preference due to guarantees of free intercourse (s 92) and non-discrimination (s 117)
  • “liberal federalism” – the more power a government has, the more likely it is to abuse it – keeping the power distributed makes that abuse less effective and potentially allows another level of government to stop it.

What are the cons of the current system/pros of the alternate systems?

  • Efficiency – one government to rule them all is cheaper (no need for all the extra houses of government or politicians)
  • Consistency – one consistent set of laws throughout Australia – an act does not abruptly shift from legal to criminal when you cross a state line.

What are the main arguments raised in lectures/readings/tutes?

  • Competitive/preference federalism mostly failed – central government too strong, states surrendered control over taxation power, ability to differentiate mostly lost
  • Liberal federalism weakened for the same reason, achieved more by checks and balances in the system (multiple houses)
  • Efficiency – Federal Nations tend to have as high if not higher GDP’s than Unitary ones – suggests efficiency is not being achieved
  • Consistency achieved at a federal level already – but is it truly desirable?

Constitutionalism – The Constitution

What is the current system?

Drafted late 1800’s, passed by referendum in every colony/state (some requiring multiple attempts) and enacted by the UK Parliament in 1900 * took effect beginning of 1901. Created a unified nation, and the Commonwealth/Federal Parliament, deals primarily with identifying the powers of that parliament, though also establishes a judicial branch. Was written at a time of strong colonies, with the assumption that they would retain power/autonomy, but that was largely overturned in 1920 by the engineers.

What are the pros of the current system/cons of alternate systems?

  • It was necessary to actually form Australia – colonies would not have accepted anything BUT a federal system
  • “Locks things in” – preserves the values of the founders
  • Limits excessive power/protects limited rights (eg. Freedom of religion, trial by jury, freedom from discrimination of basis of state, just terms for federal acquisitions)

What are the cons of the current system/pros of the alternate systems?

  • “locked in” values have been revised numerous times, with additional values being read in (implied rights)
  • Failed to achieve the strong independent states it set out to establish, instead having been twisted into a system heavily favoring the Commonwealth government.
  • Very few rights based limitations – primarily designed to facilitate federation
  • Resistant to amendment via direct change, instead altering based on judicial temperament

What are the main arguments raised in lectures/readings/tutes?

  • Hundred years old – out of date.
  • Only really designed to deal with federal concerns, doesn’t look at rights or substantive issues in any detail
  • Failed at the purpose it was designed for (locking in strong states)

Constitutionalism – Constitutional Interpretation

What is the current system?

An aggrieved party brings a case before 7 former lawyers (traditionally elderly, white, upper-class males) who get together, and whatever at least 4 of them say goes.

What are the pros of the current system/cons of alternate systems?

  • Constitution is very vague (external affairs power consists of two words – exactly what does that mean?) so someone has to interpret it. Who better than an independent judiciary?
  • Any written constitution needs an arbiter, and we needed a written constitution to facilitate federation
  • Provides an alternate source of constitutional change/clarity without requiring a referendum
  • Primarily living tree approach has seen the evolution of implied rights

What are the cons of the current system/pros of the alternate systems?

  • High Court judges ultimately appointed by Parliament, so they’re more likely to appoint judges who agree with the incumbent party and favor a weaker constitution/stronger legislature
  • Not a good cross-section to represent Australia
  • Judges can only adjudicate issues bought before them, can’t clarify constitutional issues that are not raised
  • Rejection of originalist approach has seen the constitution subverted from its original intent

What are the main arguments raised in lectures/readings/tutes?

  • Originalist doctrine has been eroded in Australia since 1920, when Isaacs and Higgins rebelled in favor of a more nationalist government
  • Originalist system effectively amounts to ancestor worship – why should someone from 100 years ago decide what the Parliament you elected can or cannot do?
  • Living Tree system makes the constitution pointless – if any 4 of 7 unelected judges can modify it, then all it really means is that it’s locked in for everyone else – why should the will of unelected judges trump that of an elected parliament?

Constitutionalism – Constitutional Amendment

1. What is the current system?
Commonwealth – s 128 referendums, bill most be put forward by senate or house of reps and passed by both (or one and the governor generals discretion), then a referenda requiring the dual majority of the people in the majority states and the majority of people overall (including Territories) must succeed. Cth must advocate each side equally, States can advocate whichever side they wish.
States – manner and form requirements for certain entrenched sections, up to and including referenda – other sections can be changed or repealed by a normal majority, either directly or indirectly.

What are the pros of the current system/cons of alternate systems?

  • More directly democratic than anything else is the system – if a matter is put up to election, EVERYONE gets to vote on it.
  • Not purely population based, retains federal elements – NSW and Victoria can’t carry a referendum on their own, needs most states to approve of it

What are the cons of the current system/pros of the alternate systems?

  • Must be proposed and passed by federal parliaments – cannot be initiated by states, even by the majority of states (probably not considered an issue due to states originally being represented by the senate)
  • Expensive and time consuming
  • Generally unsuccessful

What are the main arguments raised in lectures/readings/tutes?

  • Generally unsuccessful – highly resistant to change
  • States cannot initiate

Rule of law

What is the current system?

Certain aspects of the thin, procedural rule of law are embodied by our constitutional system. Nobody is above the law, criminal laws cannot amount to bills of attainder (limit on retrospective criminal laws, requirement that criminal laws can’t be TOO specific), it must be known and published (gazette), and the separation of powers gives us an independent judiciary and limits on the powers of the executive. The thick rule is largely ignored outside of common law presumptions that parliament does not intend to violate rights unless expressly worded, and concerns of fundamental justice.

What are the pros of the current system/cons of alternate systems?

  • Provides procedural requirements and limitations that promote ‘good’ laws and limit the exercise of power in an undemocratic fashion.
  • More democratic, as judiciary are not required to decide vague and amorphous rights/morality issues unless the express wording of Parliament is inadequate

What are the cons of the current system/pros of the alternate systems?

  • Does allow retrospective laws
  • Does allow immoral laws/rights violations as long as they’re passed the right way
  • Places too much power in the hands of the legislature

What are the main arguments raised in lectures/readings/tutes?

  • Nuremberg defence – is retrospectivity truly such a bad thing?
  • morality/rights are incredibly difficult things to decide on – probably best left for the legislature, since they’re more directly answerable to the people,
  • morality/rights are incredibly difficult things to decide on – probably best left for the judiciary, as the legislature is more reluctant to address topical issues that would alienate a significant portion of their constituents.

Parliamentary sovereignty

What is the current system?

Neither that state nor Commonwealth Parliaments are truly sovereign due to constitutional limits on their power. Any Statute they enact can be challenged on constitutional grounds, and they can’t alter the constitution. States are closer to sovereign, as they have plenary power except where specifically excluded by the constitution, whereas the Commonwealth only has enumerated powers.

What are the pros of the current system/cons of alternate systems?

  • Preserves federal balance (in theory – to a degree at least)
  • Locks things in
  • Places limits on Parliamentary powers, enforcing rule of law

What are the cons of the current system/pros of the alternate systems?

  • Places power in the hands of unelected judges instead
  • Places arbitrary limits on the power of Parliament based on a document over a century old.

What are the main arguments raised in lectures/readings/tutes?

  • Move to New Zealand
  • Elected representatives are probably more suited to deciding important issues than unelected judges, as they are more accountable (more democratic that way)
  • Could encourage legislature to pass laws they know will be struck down, abdicating their responsibility to try and score points with interest groups
  • Only legislative change really matters in the long run – topical decisions (eg. Mabo) are meaningless without it
  • More political veto power wielded by the judiciary, the more they end up forced to become law-makers, and the more political activists shift to judicial activists

Separation of powers

What is the current system?

Responsible Government, based on the Westminster system. In effect, the judiciary is completely separate (Ch III), while the functional heads of the executive (PM and Ministers, as opposed from the Governor General and queen, the *technical* heads) is actually chosen directly from/by the legislature, based on which party has the confidence of the legislature.

What are the pros of the current system/cons of alternate systems?

  • Preserves a strong and independent judiciary
  • Liberal – limits the power one individual can wield – person who makes laws can’t also decide on guilt or innocence.
  • More democratic – all Ministers MUST be elected, can’t just be appointed by the President

What are the cons of the current system/pros of the alternate systems?

  • Party in control of the lower house is also in control of the executive – not an issue after this election, but can be a problem, particularly in Queensland with no upper house
  • Limited separation founded on democratic principles in England – less applicable in Australia where upper house is elected (though here only the PM and Treasurer need to be from the lower house, and even that is only convention – fewer limits on senators)
  • No chance to elect local representative AND executive (aka the US model)

What are the main arguments raised in lectures/readings/tutes?

  • Both executive and legislative being tied together significantly limits the benefits of the separation, as it only really applies to judiciary.

Taxation and Spending: The VFI

What is the current system?

Constitution granted taxation powers to state and federal governments equally (bar excises and customs – s 90). States were all but forced to surrender them during World War 2 (Uniform Taxation cases) in exchange for grants (s 96) and can now only enact license fees and a few small taxes (eg. Payroll tax). States now get 14-18% of the tax income, but spend roughly 50%, making them very dependent on federal funding, which comes with strings attached.

What are the pros of the current system/cons of alternate systems?

  • Consistent throughout Australia
  • Leads to a strong central government capable of making policies outside of its constitutionally limited areas

What are the cons of the current system/pros of the alternate systems?

  • Limits independence of the state governments, negating a lot of the benefits of a more local level of government
  • Accountability – votes on a local level only affect those implementing the policies, not those coming up with them.
  • Circumvents the original goals of the constitution

What are the main arguments raised in lectures/readings/tutes?

  • Erodes the division of powers between states and commonwealth, making it more difficult for voters to hold the government affecting them accountable
  • Inability to impose specific requirements on the degree of federal limits to tied grants give states a LOT of leeway on how they meet those requirements and regulate them.
  • Enables national policies that the constitution would otherwise prevent
  • “Vertical competitive federalism” – Federal government can partially implement, fund, and take credit for state level implementation, States can blame Federal government for not funding things important to constituents, etc.

Taxation and Spending: Budget Specificity

What is the current system?

Commonwealth passes annual budget act – only lower house can initiate or amend, if upper house refuses it twice, convention dictates that the cabinet has to stand down. Combet case raised questions about how specific the budget has to be (Was political advertising for Workchoices included in ‘departmental expenditure’?) – High Court basically washed its hands of the matter, saying if you want to pass non-specific budgets, then you have to live with the potential abuse.

What are the pros of the current system/cons of alternate systems?

  • Keeps a political matter political – no judicial interference
  • Rapid implementation of policy – doesn’t need legislative improvement at every step

What are the cons of the current system/pros of the alternate systems?

  • Expands power of executive as long as they can keep getting vague budgets passed, they can spend the money on whatever they want
  • Sets a precedent – courts unwilling to interfere with budget interpretation.

What are the main arguments raised in lectures/readings/tutes?

  • Dangerous precedent

Taxation and Spending: Power to Spend

What is the current system?

Government can spend on any purpose within the constitution, and arguably (though probably not post Pape) on ANY purpose, even outside of it. Grants are held to be a purpose within the constitution, but any expenditure should be justified under a constitutional head of power.

What are the pros of the current system/cons of alternate systems?

  • Strong central government (can either spend on whatever they want, or whatever they need for themselves plus tied grants)

What are the cons of the current system/pros of the alternate systems?

  • Nobody actually knows what it is – High Court hinted that spending should be subject to constitutionally valid purpose, but have yet to definitively rule on it, or identify what the restrictions are.

What are the main arguments raised in lectures/readings/tutes?

  • Ambiguity

Representative Government

What is the current system?

Directly chosen by the people only refers to the legislature, and indirectly to the chiefs of the executive (PM and Ministers) via the Westminster system. Ministers promoted from the Legislature – MUST be a member of the house or senate. Federal electorates have roughly the same size (plus or minus 20%), giving each vote roughly the same weight. Voting is compulsory, fines for failing to do so. Prisoners retain the right to vote unless valid reasons exist to deny it.

What are the pros of the current system/cons of alternate systems?

  • house of review provides checks/balances
  • voting is a right, but not an absolute right (Roach)
  • One vote has roughly the same value as another (McKinlay)
  • No gerrymandering – independent electoral commission

What are the cons of the current system/pros of the alternate systems?

  • Mandatory voting results in disinterested/uninformed voters
  • wasn’t designed with party politics in mind
  • Discrepancies in electorate sizes do exist
  • People in areas dominated by a particular party have votes that effectively don’t count

What are the main arguments raised in lectures/readings/tutes?

  • Originally designed for UK Westminster system based on peerage – more democratic to give lower house more power/representation
  • Why should someone who is in prison for 3 years not be able to vote when someone who is in there for a week be able to? Logistical issues, double standard?
  • Should one vote have one value? Logistical issues, equality, rationality of voting in general.

Freedom of Political Communication

What is the current system?

High Court feel that ss 7 and 24 require political communication in order to facilitate free and democratic elections. This is not an absolute right, but binds both state and federal legislation to avoid imposing any unreasonable or disproportionate limits on political communication in the process of enacting of a legitimate law.

What are the pros of the current system/cons of alternate systems?

  • More informed electorate = more democratic government
  • Potentially limits flagrant violations of legislative power (eg. Attempting to abolish opposing party, banning advertising in the hope of incumbent benefits, etc.)
  • Not an absolute right – doesn’t prevent legitimate laws from being enacted

What are the cons of the current system/pros of the alternate systems?

  • Sets a dangerous precedent – reading ‘bonus’ rights into the constitution
  • Not an absolute right – leaves it up to the judges opinions

What are the main arguments raised in lectures/readings/tutes?

  • Is law x appropriate and adapted?
  • The right to make laws limiting political communication is a necessity – has always been exercised, banning advertising on election day, no advertising inside the polling booth, etc. (Brennan)
  • Look at whether the type or content are being limited – easy to justify regulation of a specific type of communication, more difficult to justify content (McHugh)

The Role of Parliament

What is the current system?

Parliament (the legislature) determines the executive, debates/answers questions, deliberates over legislation, scrutinizes regulation, deals with grievances, and members can nominate potential legislation, generally drafted by the executive. Also passes, rejects, or amends legislation.

What are the pros of the current system/cons of alternate systems?

  • Gives everyone local access to a representative of ‘The Government’ – can petition your local MP over grievances
  • Need a process to formalize the inception and approval of legislation – representative government is much more efficient than a referenda for each Bill
  • Serve an accountability role via question time, debates, etc.

What are the cons of the current system/pros of the alternate systems?

  • Dominated by the executive and/or dominates the executive – as long as PM maintains the confidence of their party, they effectively control both branches – potential for abuse
  • Small body dealing with potentially infinite number of concerns – able to generally guide the course, but lacks fine detail control, which is ultimately left to the executive.

What are the main arguments raised in lectures/readings/tutes?

  • Is the passing of laws *really* the primary role of the legislature?
  • Is a more American separation of powers desirable?
  • Does responsible parliamentary government conflict with responsible party government? Are the executive really responsible to parliament, or only to their party?

The Executive

1. What is the current system?
The largest branch of the government, the executive is controlled by the Ministers, appointed from the Senate/House of Reps, and actually implements and enforces legislative policy. Includes taxation officers, police officers, centrelink employees, and even more independent branches like the electoral commission or the ombudsman.

What are the pros of the current system/cons of alternate systems?

  • Creates employment, implements government policies

What are the cons of the current system/pros of the alternate systems?

  • Controlled by legislature via ministers – erodes separation of powers, could lead to greater potential for abuse, fewer checks and balances

What are the main arguments raised in lectures/readings/tutes?

  • How independent does each branch of the executive need to be in order to do its job? Is it *truly* independent of the legislature/ministers still control the purse strings?

Government Accountability - General

What is the current system?

Spread out between the Media, the Judiciary (High Court being the final arbiter for any constitutional issues), the Legislature (Question time, debates, appointing special committees to investigate), and the parts of the Executive, particularly the Ombudsman. Includes ability of voters every 3 years to hold legislature/ministers accountable via elections.

What are the pros of the current system/cons of alternate systems?

  • Oversight and accountability built into the system – degree of transparency at every step of the system
  • Free services provided to individual citizens (local MP, Ombudsman) rather than forcing an expensive legal route

What are the cons of the current system/pros of the alternate systems?

  • Time and resource constraints – judicial process is slow and expensive, local MP and Ombudsman may not have time to address issues
  • Accountability essentially a political process
  • Focus is on ‘big ticket’ issues that make it into the media – smaller problems may be ignored or disregarded.

What are the main arguments raised in lectures/readings/tutes?

  • Do we need a separate ‘integrity branch’? (Spiegelman)
  • Who watches the watchmen?
  • Is there enough room to identify and fix systemic issues, or is the focus on band-aids for existing problems?

Government Accountability - Ombudsman

What is the current system?

Free Office that deals with complaints within a specific area (Cth, State, telecommunications, etc.) – can be a government department or a private industry scheme.

What are the pros of the current system/cons of alternate systems?

  • Free for citizens to make a complaint
  • No evidence required
  • Informal – can be done over the phone
  • Staffed by experts
  • Deals with wide range of issues, from trivial to vitally important

What are the cons of the current system/pros of the alternate systems?

  • No real control over the investigation or lack thereof
  • No remedies power, can only make suggestions
  • Overworked – 45k complaints -> 19k within jurisdiction -> 5k investigations -> 500 actual errors/deficiencies found
  • Also deals with complaints levied at itself (roughly 1%)

What are the main arguments raised in lectures/readings/tutes?

  • Does the Ombudsman need more power? Would it help or hinder?
  • Who watches the watchmen?
  • Is independence a lie? He who pays the piper calls the tune
  • Is there enough room to identify and fix systemic issues, or is the focus on band-aids for existing problems?