Australian Political and Legal System

TOPIC ONE: Australian Political and Legal System

Overview

Politics is everywhere. Every day the newspapers, radio and television present new political developments, both local and international. The pervasive nature of politics reveals its powerful role in shaping our lives and directing the course of government. As citizens we are more or less familiar with politics, though some of us would prefer to avoid it if possible and even dismiss it, perhaps because it is run by ‘politicians’. But even those who appear to reject politics altogether concede the importance of some knowledge and familiarity with the broad outlines of the Australian political landscape.

Though it is desirable that all Australians should at least be familiar with the Australian political system, for public sector managers such familiarity is essential. A solid grounding in the Australian political institutions and ideas that inform them allow you to understand the: • historical background of the institutional structures that shape policy • larger institutional context in which policy is made • general ideas that shape and guide politics and public administration • specific principles that enable and, in some cases constrain, public action.

In short, it is not possible to manage up without understanding the institutional and theoretical environment in which you will be making decisions as a public sector manager.

In this topic we will introduce the fundamental institutions and ideas that make up the Australian political system. In subsequent topics we will examine in greater detail some aspects of these institutions and ideas. The intention throughout is to demonstrate the direct and important implications these institutions and ideas have for the performance of your duties as a public sector manager.

You will also have to deal with the law in very specific contexts. Your duties and responsibilities are usually defined by the law. Your powers will be given to you by legislation. The extent to which you have discretion and are able to exercise it will also be legislated. In short, it is difficult to understand your role without understanding its legal aspects. This fact reveals an important feature of law in the Australian political system. It is called ‘the rule of law’. The rule of law is the principle that every person and organisation, including the government, is subject to the law. This means that in exercising powers and discretions, individuals and especially government officers must comply with the law; they must not exceed

t o p i c o n e : australian political and legal system 55 their legally given authority. Consequently, an important part of managing up is to understand the larger legal structures and principles that govern your responsibilities as a public official. In this topic we will examine important features of the rule of law in Australia. We will examine the history of the rule of law in Australia and the separation of powers. We will consider the different types of laws, especially those that have a direct bearing on your duties as a public sector manager. We will also look at the judicial hierarchy or the court system and the important role of judicial independence in enforcing the rule of law.

Learning Objectives

O n successful completion of this topic, you will be able to:

1. Describe the basic characteristics of the Australian political system.

2. Discuss some of the practical implications of translating policy into legislation.

3. Define and apply concepts upon which the Australian legal system is based, such as the rule of law, separation of powers and judicial independence.

4. Distinguish between the different types of laws and apply this distinction to the laws that guide your work.

1.1 overview of Australian Founding and Machinery of Government

It is often assumed that senior or experienced public servants such as those doing the PSM Program have a very good grasp of the machinery of government and the Australian political system. To test this assumption we have devised a short quiz to check your knowledge. This has been done so that you need only familiarise yourself with the introductory reading if you are able to answer all the questions in the quiz.

Activity 1.1 – Machinery of government quiz

1.W hen did the Australian Constitution take effect?

2. Why is the Australian Constitution important to members of state/territory governments?

3. What does separation of powers mean?

4. How are the powers separated?

5. What does the federal parliament consist of?

6. How can the Australian Constitution be changed?

7. How many Australian senators are there?

56 P S M U n i t 1 : M a naging up: the framework of public sector management 8.H ow many members are there in the Australian House of Representatives?

9. Is the federal Cabinet referred to in the Australian Constitution?

10. What is the role of Cabinet?

Activity 1.2 – Finding out more

1.I f you could not answer all these questions correctly, consult some of the Parliamentary Education Office’s publications. See the Other Learning Resources link for this topic on the PSM Program National website.

2. An alternative interactive source to help you answer the questions is the CD-ROM A house for the nation: 100 years of Australia’s House of Representatives. See the Other Learning Resources link for this topic on the PSM Program National website.

This informative and well-presented CD-ROM provides a contemporary and fascinating account of the basics of Australian political institutions and also shares interesting case studies that inform key concepts discussed in this and future topics elaborated in the unit. The CD-ROM is divided into the following sections:

i) People of the House

ii) A Home for the House

iii) The Work of the House

iv) Journeys

This last section, Journeys, provides information and cases on the following relevant topics:

• The House of Representatives and the executive government

• The House of Representatives and political parties

• The House of Representatives and the media

• The House of Representatives and parliamentary privilege

• The House of Representatives and the Senate

• The House of Representatives and responsible government

• How representative is the House of Representatives?

• The House of Representatives and the electoral system

• A day in the life of a member of the House of Representatives

• Tour the House of Representatives

t o p i c o n e : australian political and legal system 57 Australia is a parliamentary democracy in the Anglo–American tradition. Its design was strongly influenced by its British colonial origins and the efforts of Australia’s ‘founding fathers’ to incorporate elements of the American model.

Fenna (2001) identifies four features that characterise Australia’s system of government. These are: • federalism • parliamentary government • bicameralism • constitutionalism.

In the sections that follow, we briefly review these characteristics, focusing on their implications for public sector management. We examine the concepts of federalism and responsible government in detail in subsequent topics.

Australia has a federal system of government, meaning that power is shared between different levels (or tiers) of government. The division of responsibilities and powers is outlined in the Australian Constitution. Fenna (2004:1) notes that, ‘The six states and the Commonwealth coexist in an ongoing constitutional partnership. Within that constitutional context, Australia’s local and territorial governments occupy a subordinate position’.

This situation of shared responsibility between Commonwealth and state governments has important implications for policy and service delivery. As we will see in Topics Three and Nine of this unit, this can bring both benefits and problems.

The Commonwealth of Australia is a union or ‘federation’ of the old colonies of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia. The colonies – independent and self-governing political units – decided to federate for a range of reasons, including defence and commercial considerations.

The Australia system of government came into being upon the enactment by the Imperial Parliament of the Commonwealth of Australia Constitution Act (or the ‘Constitution’ as it is usually known). Though the Constitution, which came into effect on 1 January 1901, was formally enacted in Britain, in fact it was ‘home grown’. Its terms were decided in the course of a number of federation conventions and approved in the course of popular referenda. Thus the terms of the Constitution were a result of the decisions and compromises reached by politicians from the various Australian colonies, endorsed by the Australian people and formally enacted by the British Parliament.

Want to know more?

T he Australian Constitution is the ‘blueprint’ for our system of government. Familiarise yourself with its general structure. You can do this by reading the Constitution itself. A copy can be accessed at http://www.aph.gov.au/senate/general/constitution/index.htm

Most Australian politics textbooks have chapters on federalism and the development of the Australian Constitution. See the Further Reading section at the end of this topic for suggestions.

58 P S M U n i t 1 : M a naging up: the framework of public sector management 1.2 Representative Democracy and Responsible Government

The Australian colonies that took part in federation had adopted the British parliamentary or Westminster system. This system was based on the concept of representative democracy where the people elect members or representatives to come together in parliament to form a legislative or law-making body.

Thus the drafters of the Australian Constitution in the 1890s were familiar with the concepts of representative democracy and parliamentary government when they came to consider the nature of the new federal government they sought to institute.

In addition, the drafters were familiar with the British Westminster system of responsible government. We will take up the concept of responsible government in much greater detail in Topic Two, examining its importance for public sector managers. At present it is sufficient to indicate the broad outlines of the principle. As noted, in the Westminster system the people elect representatives to parliament. Those members of parliament who have majority support in the House form government, with the power to introduce and enact laws and, importantly, to raise taxes and spend money. While there is some variation in the process used by different political parties, members who have majority support in the House usually elect the prime minister and the senior ministers to head the executive arm of government. The Cabinet as it is generally known, is drawn from the members in parliament and is accountable – or responsible – to parliament. Cabinet is the most senior and powerful body in government. An important aspect of responsible government is that where the government does not have the support of the House, it must resign.

There are many ways in which parliament can be structured – for example, Queensland does not have an Upper House and Tasmania has proportional representation in its Lower House. However, there remains a continuing commitment to the principles of representative and responsible government in the states. The Commonwealth parliament has conferred self-government on the people of the Australian Capital Territory and the Northern Territory, though neither has as yet become a state.

Activity 1.3 – Effect of statehood

Discuss in detail the effect on Australia of granting statehood to either or both of these territories.

Discuss in detail the effect on Australia of granting statehood to either or both of these territories. To assist in this discussion see: Horne N, 2008, Northern Territory Statehood: major constitutional issues – Parliamentary Library Research Paper. Can be accessed at http://www.aph.gov.au/library/ pubs/rp/2007-08/08rp21.pdf

t o p i c o n e : australian political and legal system 59 The Australian federal government adopted the main features of the Westminster system of responsible government. It had to accommodate the American innovation of federalism, but in all major respects both representative and responsible government became important concepts that informed the political system secured at the founding.

Accordingly, the Commonwealth parliament is made up of two Houses: the Lower House, the House of Representatives, whose members are elected by Australian citizens, and the Senate. The Senate, which is also elected, is based on state representation. Twelve senators are elected by each state, regardless of the population of those states. Thus Tasmania has the same number of Senators as New South Wales – a situation that many now consider anomalous given the disparities in size and population. The Australian Capital Territory and the Northern Territory elect two Senators each. Weller (2004:61) notes that equal state representation was ‘a core component of the federal compact; it was based on the view that the population of the larger states of Victoria and NSW should not overwhelm the interests of the small states’. Since 1949 the Senate has been elected by a system of proportional voting, which distributes seats according to the level of support candidates receive from voters statewide. Under this system it has been difficult for governments to achieve a Senate majority.

Despite the founders’ intentions, the Senate operated as a States house only briefly. The emergence of the party system in 1909 put paid to this aspiration (Marsh 2001). Senators have tended to vote along party lines, supporting or obstructing the government of the day as they have seen fit. The emergence of minor parties as significant actors, with the potential to hold the balance of power had important implications for policy and public sector management over the past two decades. However at the 2004 Federal election the Howard government gained a Senate majority. It was the first time this had occurred since the Fraser government had lost control of the Senate in 1980. The Howard government saw the opportunity to introduce legislation that had previously been either blocked or held up in the Senate. The most controversial of these was a proposal to make sweeping changes to Australia’s Industrial Relations system. The Howard government had attempted similar changes on a number of occasions only to be stymied by the Senate. Political control of the Senate provided the opportunity to introduce the Workplace Relations Amendment Act 2005, or WorkChoices as it was commonly titled. However this opportunity became a ‘poisoned chalice’ as WorkChoices was a significant factor in the defeat of the Howard government just two years later. The outcome of the 2007 Federal election saw the balance of power in the Senate revert back to minor parties and independent members. The new Senate became effective on July 1st 2008.

Want to know more?

T he year 2001 was the centenary of federation. A number of good resources were developed as part of the celebrations. These resources cover both Commonwealth and individual state and territory involvement in the development of the Australian federation. See the PSM Program website for links to some of these.

60 P S M U n i t 1 : M a naging up: the framework of public sector management 1.2.1 Federalism

When the colonies came together in the 1890s to form a common union, they had a number of models or options on how to proceed. One was to abandon all colonial powers and merge into one new entity. It is clear that this option which was inimical to the interests of the colonies did not have great support at the founding. The colonies wanted to unite while retaining important powers they exercised as colonies. The solution for their problems seemed to be a form of federalism, where the colonies could come together to create a new independent and sovereign entity called the Commonwealth. It would be given specific powers that affected all the colonies – such as defence, immigration and currency – while the colonies retained all other powers. But federalism was not a part of the Westminster model. The framers of the Australian Constitution had to look elsewhere for this model. The principle source for this idea was the United States of America, the first modern federation. Switzerland offered another potential model. But the most recent example, where Westminster principles were combined with federalism, was Canada, which had federated in 1867.

1.3 parliamentary Sovereignty and Liberalism

In a representative and responsible system of democratic government, parliament is sovereign. This means that it is the most important and powerful body in the political system, with the ability to enact or repeal legislation as it pleases – within constraints prescribed by the Australian Constitution.

As the discussion above reveals, parliament in Australia was never sovereign in this comprehensive sense. Originally the colonies were subject to the oversight of the British Parliament and therefore their sovereignty was subject to territorial and other restrictions. After federation, the Commonwealth and State parliaments were subject to the Constitution and the federal division of powers it enacted. There are in addition a number of other restrictions on our parliaments. Parliaments may also agree to be bound by international treaties and agreements, such as trade agreements and human rights laws. They may be subject to common law principles (to be examined below), political and ethical principles (discussed in Topic Four). Unwritten rules or ‘conventions’ as informal rules are known in Westminster systems also shape and guide the way power is exercised (see Topic Four).

One of the most important foundational limits to parliamentary sovereignty in Australia is the political concept of liberalism. Liberalism is a contested concept. But in broad terms we may say that a liberal system of government emphasises the importance of the individual. Accordingly it seeks to protect individual rights and freedoms, placing as much responsibility as possible on individuals for choice and discretion in the political, moral and economic spheres of life. It is therefore suspicious of concentrated forms of power, especially political power, and sees society as consensual or contractual. It endorses the role of reason and the possibility of

t o p i c o n e : australian political and legal system 61 human progress. Think about how this ideology shapes policy. How was it played out in the Howard government’s approach to employment and workplace relations, for example?

That Australia is a liberal democracy can also be discerned from the importance we place on our rights and freedoms as individuals. Though Australia does not have an entrenched Bill of Rights, there are some provisions in the Constitution securing religious freedom. Also, the Australian High Court has held that from the provisions securing representative democracy it is possible to establish an implied freedom of political communication. However, individual rights are not very well defined in Australia, it could be argued, and public servants need to be sensitive to some of the dilemmas that this can create. One way to operationalise these dilemmas is to take the United States as an example. There we see situations where education policy and school actions are interpreted in the light of clearly defined individual rights. This issue has made headlines when schools have moved to eliminate (or in some cases introduce) religious education or religious activities and then faced opposition from parties that invoke the individual’s rights to religious freedom.

A second potential source of dilemmas for public sector managers and their senior management arises from the question of group rights, or the collective good. To an extent, the public service is an interpreter of ‘group rights’. The days are gone when ‘mandarins’ knew or even dictated the public interest, and now one of the tensions of the job of public sector management is the difficulty of balancing competing rights.

Thus there are many dimensions of authority, power and responsibility that are part of the Australian political system. As a public sector manager, you need to familiarise yourself with these dimensions because it is in this larger context of ‘managing up’ that you will exercise your own powers, discretions and responsibilities. In this context it is important to recall one of the most important roles performed by parliament in the Australian political system: parliament is the supreme law-making body.

1.4 From Policy to Legislation

A fundamental feature of the Australian political system that we have just examined is the importance of law. We are all familiar with the various ways laws affect our daily lives, from the simple transactions of buying everyday items to traffic rules, and more important instances when we confront and have to deal with the law, such as buying a house, marrying, or making a will. In our professional lives as public servants, we are also subject to the effects of law. In fact, law is a part of every activity we undertake, though its presence is not often directly felt or experienced. Indeed, it is only when we are unsure of what to do, or when we feel that we may be going beyond the law that we stop to examine the legal consequences of our actions. The pervasive nature of law and legality that we experience in Australia points to the importance for public sector managers of sensitivity to the requirements of the law. One of the most relevant aspects in a public sector manager’s appreciation of the law is the significance of how policy is translated into legislation.

62 P S M U n i t 1 : M a naging up: the framework of public sector management The development of an issue into new policy is a complex and intricate process. This is also true when policy becomes legislation. In managing up, it is important to appreciate the complex and uncertain journey an issue may make from a policy measure to an Act of Parliament. For policy to translate into legislation, it has to: • be congruent with other legislation • be in accord with whole-of-government policy or set new policy • be subject to a rigorous internal consultation process • reflect external consultation with key stakeholders • identify fully any resource implications • be successfully negotiated through parliamentary processes.

1.4.1P ractical Implications

To assist policy on the journey to legislation, public sector managers need to be able to present one-page summaries of quite complex policy positions to obtain the necessary endorsements from departmental executives, ministers and ultimately government. These all require an awareness of your audience. Different levels require different kinds and amounts of information. Also, different individuals, such as ministers, vary in the degree to which they deal effectively with policy detail. While good Cabinet submissions are built on comprehensive research and internal and external consultations, this information needs to be distilled to allow for the application of political judgment in Cabinet. While work on a Cabinet submission is often intensive and all-consuming, you need to see it also as ultimately only one item on what will be an extensive agenda.

Activity 1.4 – Using handbooks

M ost of the Australian jurisdictions have a Cabinet handbook that details the requirements for developing Cabinet submissions and other briefing materials. Locate the Cabinet handbook for your jurisdiction. If there isn’t one, find the Commonwealth one. These can usually be found online on the Premier’s or Prime Minister’s Department website.

Familiarise yourself with this document. Note whether it provides any additional information about how Cabinet functions and is supported in your jurisdiction.

To be successful with a Cabinet submission, policy has to be developed in light of the current political environment. Politics can occur at the personal, departmental or government levels. For example, the head of the department may have certain preferences you would be wise to take into account in developing a submission. There may be interdepartmental politics, where two departments have conflicting views that need to be resolved. For example, there may be conflict between a department concerned with promoting and developing industry and a department charged primarily with conservation and environmental protection.

The following excerpt from Patrick Weller’s book Australia’s mandarins: the frank and the fearless?, gives a flavour of some of this ‘politics’ and the tough positions that departmental secretaries and, as a consequence, their staff, can be put in. The

t o p i c o n e : australian political and legal system 63 excerpt comes from Tony Ayers, who was at various times Departmental Secretary for Aboriginal Affairs, Social Security, Community Services and Health and Defence.

Fraser was out bush and he had this new radio telephone. He loved gadgets. He rang late on a Saturday evening and wanted to know the opinion of several ministers that he nominated on a paper he had with him. I pointed out that anyone could listen in on a conversation on these phones. But no, ‘Get me these opinions. Over and out’. So I contacted the ministers. The last one I got to late in the evening and he was ‘Brahms and Liszt’. ‘The prime minister wants your opinion on this paper.’ ‘Tell him to get stuffed.’ ‘The prime minister explicitly asked for your opinion.’ ‘Tell him to get stuffed.’ So I gave up and rang off. Then I rang Fraser and gave him all the other opinions. ‘What does X think?’ I took a big breath and said, ‘Well, on the one hand he thinks this and on the other hand he thinks this, but on balance he prefers this’. ‘Thanks’ said Fraser and rang off. The next morning I rang the minister and said: ‘I thought you might like to know what you told the prime minister last night’. I received a sheepish thanks. (Weller 2001:189)

Most importantly, the policy needs to be in line with general government priorities. If, for example, the government’s key priority is job creation, policies on other matters such as deregulating industry need to ensure they do not conflict with this priority and lead to a reduction in employment. If such a conflict is unavoidable, the submission should also include a job creation strategy, for example.

Activity 1.5 – Aligning policy with government priorities

T he Queensland policy handbook shows the key priority areas with which policies developed by Queensland agencies must be aligned. Check whether your jurisdiction has something similar. What purpose does a set of priorities serve in coordinating the activities of government?

Activity 1.6 – Your role in the legislative process

C onsider Figure 1.1 depicting how laws are made in Victoria, and answer the questions that follow. A similar process applies in other Australian jurisdictions.

64 P S M U n i t 1 : M a naging up: the framework of public sector management Figure 1.1 How a law is made in Victoria

Source: Reprinted with the permission of the Library Committee of the Parliament of Victoria

1.H ow do your duties as public sector manager contribute to this legislative process? If you have taken part directly in the legislative process outlined in the diagram, indicate how this took place and what your role was. If you have no experience in this arena, consult with a fellow student or other colleagues and ask them these questions.

2. Which stage of the process would you describe as ‘formal’, and which as ‘politically significant’?

3. What policy measure are you involved with at present that may eventually become an Act of Parliament? What political influences has this process been subject to? Does this raise issues for you personally, and if so, how do you deal with them?

t o p i c o n e : australian political and legal system 65 The Australian political system with its representative democracy and responsible government therefore forms a key part of the context within which public sector management is executed. This particularly comes into play in the formation of policy and the progress of policy to legislation.

1.5 Separation of Powers

A fundamental aspect of the rule of law in the Australian legal system is the principle of separation of powers. This doctrine holds that the three arms of government – the executive, legislative and judiciary – are separate and that their respective functions and powers are mutually exclusive. Figure 1.2 shows how the separation of powers doctrine works.

Figure 1.2 Separation of powers

Source: Adapted from accessed 3 February 2005

In Australia the separation of legislative and executive power is less pronounced, as the members of Cabinet or the executive must be elected or form a part of the legislature. But the demarcation between the judiciary, the legislature and the executive is secured in Part III of the Australian Constitution.

In protecting the judiciary from arbitrary dismissal and allowing it security of income and tenure, the Constitution seeks to protect the judicial separation of powers. Such a separation of powers is generally considered essential for the preservation of the rule of law as it allows the judiciary to decide important legal matters without fear or favour. The perception that the judiciary is impartial, unbiased and disinterested is one of the essential elements for the rule of law. These principles can be seriously undermined when politicians publicly attack or criticise judges or the operations of the courts.

66 P S M U n i t 1 : M a naging up: the framework of public sector management Activity 1.7 – Judicial independence

C onsider the impact of political attacks on the judiciary. Ultimately the independence of the judiciary depends on acceptance of their judgments. When legislation is difficult to change, ‘judge bashing’ is attractive if they turn in the wrong result.

1. Read Parker, SP & Petrie-Repar, B (n.d.) Judicial independence in Australia – briefing materials for the community, Faculty of Law, Griffith University. You will find this in the Other Learning Resources section of PSM Program National website.

2. Answer the discussion questions at the end of the reading. Then do the next part of this activity.

3. To what extent do you think judges should comment on political matters? Support your opinion with material from the Parker and Petrie-Repar reading.

Extend yourself

A higher-level response to this activity would also draw on material from the University of New England, Australian Constitution Research Projects, Separation of Powers. This is also available in the Other Learning Resources section of PSM Program National website.

1.6 History of Law in Australia

Examine Figure 1.3, which presents a brief history of the developments of the legal system in Australia.

t o p i c o n e : australian political and legal system 67 Figure 1.3 Developments of the legal system in Australia

Source: Crosling and Murphy (1996:5)

Please note that Commonwealth law only overrides state law where the Commonwealth has jurisdiction.

We can see from Figure 1.3 above that the Australian laws have their origins in the English legal system. In time, however, this English heritage has been gradually replaced by Commonwealth and state legislation and decisions by Australian judges, resulting in a unique Australian legal system.

68 P S M U n i t 1 : M a naging up: the framework of public sector management As the diagram notes, important legal milestones included the establishment of English laws in 1828 and Federation in 1901. Formal recognition of the legal independence of Australia from the UK was given in the enactment of the Australia Acts in 1986.

As Stokes and Gillen (2004:63) note, indigenous systems of law and land ownership existed before white settlement in Australia. However, the British colonials regarded the land as terra nullius – land inhabited by no one. In 1992 the High Court in Mabo v. Queensland (No. 2) (1992) 175 CLR 1, rejected the theory of terra nullius. The High Court held that Australia was not terra nullius when it was settled and that there was a form of land ownership recognised by Aboriginal people. These rights should be recognised unless there was a subsequent exercise of control by the appropriate Parliament over the particular landholding (Carvan 1999:27). The Commonwealth’s Native Title laws were passed in response to the High Court’s decision in the Mabo case.

1.7 types of Law

At a theoretical level, the concept of law has a number of dimensions. For some, laws have divine origin. For others, they are derived from ‘nature’ or ‘reason’. Some consider law no more than the exercise of force by the powerful to gain advantage over others. Others see law as a bulwark against the powerful. The discipline of jurisprudence examines these dimensions of law in great detail. Here we will not enter into these debates – it is enough to note the deeper theoretical dimensions of the concept of law.

It is important to be aware that there are many types of laws and many ways to classify the main branches of the law. Each classification will capture an important aspect of the differences though it may do so at the expense of clarity in some other aspects.

Figure 1.4 shows a classification that takes into account Australian legal history.

Figure 1.4 A classification of law

Source: Carvan (1999, p.6).

t o p i c o n e : australian political and legal system 69 The difference between public law and private law is intended to reveal the prominence of the respective public and private aspects of rights and interests.

Thus public law includes: • Administrative Law: laws concerning the proper administration of laws and obligations by government officials • Constitutional Law: as the name suggests, the laws concerning constitutions, both written and by convention • Criminal Law: wrongs against the community, especially peace and order • Industrial Law: working conditions, wages and industrial conditions generally • Taxation Law: laws imposing taxes and other revenue-raising measures.

And private law includes: • Contract Law: laws concerning legally binding agreements entered into between parties • Commercial Law: laws concerning business and commercial dealings • Torts: laws regulating civil liabilities other than breaches of contracts • Succession Law: laws regulating the disposition of assets upon death • Property Law: laws concerning real property (such as land) and personal property (all other property) • Corporate Law: laws that regulate the structure, conduct and operations of corporations and the duties of directors • Banking Law: laws that provide the framework for the establishment and regulation of banks.

Clearly the work of public servants is guided by the law but this guidance can take a number of forms. In some cases it is direct and specifically aimed at the public service, in other cases its influence is much more subtle. For example, at the federal level, former Public Service Commissioner, Andrew Podger, offered some pertinent comments.

I thought it might be useful to make a few comments (about that) in the light of the Public Service Act 1999. There has been a major shift over the last 20 years in devolving authority to agency heads and away from a central body of the Public Service Board and away from prescriptive rules in the Public Service Act. The provisions in the Act now are around values and a code of conduct. There are some people who view those as aspirational things that you put on the wall and you hope people think about. But I want to make it clear that it is a lot more than that. The values and the code of conduct are in the law. They are in sections 10 and 13 of our Act. There are obligations in the Act on agency heads to uphold and promote the values and to ensure that there is compliance with the code of conduct, and the Public Service Commission has an evaluation role in its functions on both those scores. The Public Service & Merit Protection Commission has put out some guidance on these things in terms of a document on values, and there are directions on each of the values (Senate Select Committee on a Certain Maritime Incident, 2002:1201).

70 P S M U n i t 1 : M a naging up: the framework of public sector management In addition to the classification of public and private law, there is an overarching distinction that is often made between Statutes and the Common Law. • Statutes: statutory laws or legislation refer to those laws enacted by parliaments • Common Law: common law refers to those laws that can be discerned from the judgments handed down by the judiciary.

Activity 1.8 – Your experience of the law

Answer the following questions about your experience of the law in relation to your work:

1. What areas of law have you never encountered in the course of your duties? What would it take for them to affect your role? What impacts can you envisage?

2. If you are from a state/territory jurisdiction, identify what legislation or other mechanisms are parallel to the Public Service Act 1999 and Code of conduct referred to by Podger.

1.8 courts in Australia

In Australia the court system includes the Commonwealth, state and territory courts.

Commonwealth courts include: • The High Court of Australia: the judicial power of the Commonwealth is vested in the High Court – the final court of appeal on civil and criminal matters and the court that determines constitutional issues • The Federal Court of Australia: deals with bankruptcy, corporations law, industrial relations, taxation, trade practices and judicial review of administrative actions • The Family Court of Australia: deals with marriage and divorce, including custody and welfare of children. State and territory courts include: • Supreme Courts: the highest state and territory courts, dealing with the most important civil litigation and most serious criminal cases • Intermediate Courts: decide the great majority of serious criminal cases involving a jury and civil litigation up to certain monetary limits, for example County Courts in Victoria or District Courts in New South Wales. • Courts of Summary Jurisdiction: presided over by a magistrate, these courts deal with most of the ordinary or summary offences, including traffic infringements and minor assaults. They also conduct initial committal proceedings for more serious cases • Small Claims Courts: allow minor legal disputes to be dealt with quickly, cheaply and informally.

t o p i c o n e : australian political and legal system 71 There are, in addition to the above courts, other bodies that administer justice. They include: • Industrial Tribunals: both the Commonwealth and the states have specialised tribunals to deal with industrial matters • Administrative Appeals Tribunal: the major Commonwealth tribunal for reviewing administrative decisions. As a state example, Victoria has VCAT, which, according to some, plays a prominent and contentious role in planning appeals • Native Title Tribunal: established under the Native Title Act 1993, the Tribunal deals with claims concerning Native Title by Aboriginal and Torres Strait Islander people.

Activity 1.9 – More on your experience of the law

1.B riefly define in your own terms the concept ‘rule of law’. How important is the rule of law for the performance of your duties? In what way does it affect your role?

2. Have you in the course of your work responsibilities taken legal advice or taken a matter to the courts? If not, have you observed others do so? Sketch the story of an experienced or observed incident.

The rule of law dictates that every person and organisation, including the government is subject to law. Thus your agency and you personally are part of an overall system of different types of laws adjudicated by a hierarchy of courts.

Review

H aving completed this topic, you should now be able to:

1. Provide a general overview of the Australian political system.

2. Discuss some of the practical implications of translating policy into legislation.

3. Define and apply concepts upon which the Australian legal system is based, such as the rule of law, separation of powers and judicial independence.

4. Distinguish between the different types of laws and apply this distinction to the laws that guide your work.

72 P S M U n i t 1 : M a naging up: the framework of public sector management Required Reading

There are three required readings for this topic. Each provides a basic overview of concepts and themes discussed in this topic. Participants are encouraged to also consult the suggestions for Further Reading below.

Required Reading 1.1 Summers J., 2006, ‘Parliament and Responsible Government’ in Government, Politics, Power and Policy in Australia, 8th ed., Parkin A., Summers J & Woodward D, (eds) Pearson Longman.

Required Reading 1.2 Singleton, G., Aitkin, D. Jinks, B. & Warhurst, J. 2006, ‘The Australian Constitution’, in Australian Political Institutions, 8th ed. Prentice Hall.

Required Reading 1.3 Weller, P. 2004, Parliament and Cabinet: the centre of government, in Governing Business and Globalisation 2nd ed., Van Acker, E. & Curran, G. (eds) Longman.