Cornerstones of Australian Law

Foundations of Australian Law

Fourth Edition

Copyright © 2013 Tilde Publishing and Distribution

Chapter 2The Australian parliamentary system

Chapter overview

This chapter looks at the concepts of The Australian Parliament State parliaments Separation of powers Representative and responsible government Limitations on powers Legislation, Bills and Acts

• Supreme law making body derived from the British Westminster System

• Supreme position of parliament is referred to as sovereignty of parliament

• Australia has a national Federal Parliament as well as state and territory parliaments.

Parliament

Australian parliaments• Commonwealth Parliament - Canberra

(bicameral)• ACT Parliament (unicameral)• NT Parliament (unicameral)• Queensland Parliament (unicameral)• NSW Parliament (bicameral)• Victorian Parliament (bicameral)• Tasmanian Parliament (bicameral)• South Australian Parliament (bicameral)• Western Parliament (bicameral)

Parliamentary system

• Parliament is comprised of one or two houses

• A house is an assembly of elected members of parliament

• Bicameral parliamentary system two houses

• Unicameral parliamentary system one house

British Westminster system

• Head of State Queen Elizabeth II

• Lower House House of Commons

• Upper House House of Lords

Main functions of parliament

• Form government

• Enact and abolish laws

• Establish committees to investigate issues of concern and scrutinise the government in power

History of Australian Federation

• Federal Council of Australasia Act 1885 passed to allow the colonies to confer every two years and pass laws of common interest

Historical timeline

Late 1800s Idea of an Australian Federation was born

1891 -1898 A number of conventions were held to draft the Australian Constitution

1899 The Commonwealth of Australia Constitution was passed to form the Commonwealth of Australia

The colonies formed six states and two territories

1901Lord Hopetoun was appointed as Australia’s first Governor General

Commonwealth Parliament

• Commonwealth of Australia Constitution Act 1900

referred to as the Commonwealth Constitution

• Constitution established Commonwealth

Parliament set out the law making powers

between the Commonwealth and the States

• King or Queen (i.e. the Crown)

• Upper House Senate

• Lower House House of Representatives

Commonwealth Parliament

C’wealth Government

• Government political party in power

• Prime Minister head of the government

Cabinet

• Cabinet comprised of senior and junior ministers

Senior ministers in charge of important portfolios

Junior ministers in charge of less important portfolios

• Constructing policy

• Approving bills

• Prioritising bills for introduction to parliament

• Senior ministers supervise the administration of their respective government departments

Cabinet functions

Executive Council

• Consists of Governor General Prime Minister Ministers in Cabinet

• Role is to formally ratify decisions made by the ministers in relation to administration of government

Opposition

• Party with the next largest number of seats

State & territory parliaments

• Structure King or Queen Upper House

- usually called Legislative Council Lower House

- usually called Legislative Assembly

State & territory governments

• Leader of the governing party Premier of that state

• State parliaments have cabinets, Ministers, and Executive Councils

• Executive Councils called Governors in Council in all states and territories

Parliaments

Separation of powers

Separation of powers

• Law-making powers exercised within society can be classified in three ways

legislative power executive power judicial power

Legislative power

• Given to Australian parliaments by the Commonwealth Constitution to make legislation

Executive power

• Power to administer laws

• Exercised by Executive Council in the

Commonwealth of Australia Governor in Council in all states and

territories of Australia

Judicial power

• Power exercised by the Courts

• Involves hearing and determining legal

questions interpreting the law and its

application in particular cases

Representative Government

• Every member of each parliament in Australia represents the people within the electorate that elected that member

• Every Member of Parliament is answerable to his/her electorate

• If majority of voters in an electorate are dissatisfied with the local member/local member’s political party, a new person may be elected to represent that electorate in parliament

Powers of parliament

• Constitution divides the legislative powers between the Commonwealth and the states

Powers of Commonwealth Parliament

• Constitution has given the Commonwealth Parliament the right to exercise specific powers

• Two categories of specific powers Exclusive Concurrent

Exclusive powers

• Constitution has allocated the Commonwealth Parliament exclusive powers to legislate in particular areas

• Allow only the Commonwealth Parliament to make laws in areas that affect the nation

Exclusive powers

• S114 – the raising and maintaining of any naval or military force

• S 115 – the coining of money

• S 90 – the granting of bounties on the production or export of goods

• S 52 (ii) – the Commonwealth Public Services

Concurrent powers

• Shared between Commonwealth and state parliaments

• Allow both parliaments to legislate in the same areas such as quarantine and taxation

Concurrent powers

• S109 of the Constitution provides that where a state law is inconsistent with a Commonwealth law the later will stand

• Commonwealth laws always prevail over state laws

Residual powers

• Given to state parliaments to make laws in relation to state matters

roads, railways, hospitals etc

• Powers are not specifically stated in the constitution but are left over powers

Limits on Commonwealth power

• Limited by the Constitution• Commonwealth

must not prefer one state over another in relation to trade, commerce or revenue (s 99), or in relation to taxation (s 51(ii))

must protect every state against invasion (s 119)

cannot restrict free trade between states (s 92)

Limits on state powers

• Limited by the Constitution• States

cannot levy customs & excise duties (s 90) trade between states must be free (s 92) prohibited from raising military forces (s 114) prohibited from coining money (s 115)

• Federal law will always prevail over state use of a concurrent power to the extent of any inconsistency (s 109)

Overcoming constitution limitations

• The Commonwealth may overcome its constitutional limitations in two ways

making an agreement with states change the constitution

Agreement with the states

• S 51 (xxxvii) of the Constitution allows state parliaments to refer a residual power to the Commonwealth in relation to passing legislation in a particular area

• S 61 of the Constitution allows the Commonwealth to give the states funds to spent in a particular way, e.g. maintenance of roads

• Encourage all the states to enact the same legislation in a particular area thus uniforming the law

Changing the constitution

• The Constitution may be changed in two ways

Referendum method High Court method

Referendum method

• Section 128 of the Constitution allows itself to be changed only in accordance to the process of a referendum

• A referendum allows wording of the Constitution to be changed through adding, deleting or amending words, sentences or sections

High Court method

• High Court Does not change the words of the Constitution It’s role is only to interpret its words Resolves disputes between the Commonwealth

and a state Its interpretation of particular sections of the

Constitution may alter the balance of power between the states and the Commonwealth

• See Franklin Dam Case on page 50

Delegated legislation

• Parliaments delegate some of their law making powers to expert bodies to make laws in their specialised areas

• Expert bodies known as subordinate authorities

• Laws made by these bodies are referred to as delegated legislation

How are law making powers delegated?

• By way of an enabling act or a parent act

• Enables a subordinate authority to make laws in the form of regulations, by-laws, orders, statutes, and/or rules

• Sets strict guidelines to be followed by the particular subordinate authority

Ultra vires

• Regulations passed by subordinate authorities that are beyond the powers granted by parliament can be challenged as being ultra vires (‘beyond power’)

• Regulations declared ultra vires are not enforceable

Examples of bodies that make delegated legislation

• Subordinate authorities local governments government departments Executive Council

• Statutory bodies educational institutions public utility corporations administrative tribunals some courts sporting & other public purpose institutions

Advantages of delegated legislation

• Subordinate authorities have more time, in comparison to

Parliaments, to make laws have more expertise (especially

local) can take swifter action allow greater public participation

through the empowerment of local authorities

Disadvantages of delegated legislation

• Laws and regulations are made by unelected public officials

• Quality of checks on subordinate authorities can at times be questionable

• Subordinate authorities may at times infringe upon basic human rights

• Use of subordinate authorities may contribute to over-government and the fragmentation of law-making

Checks on delegated legislation• Main methods of checking

committee system parliamentary supervision through

tabling

Legislative process

• Refers to the law making by which parliaments make Acts

• Commonwealth and state Parliaments have the same legislative process

Tabling of proposed law

• The Minister advises one of the Houses of Parliament of the issues raised in the report to place it before the House

called tabling

Policy

• The Minister prepares a number of policies based on the recommendations made in the report

• Cabinet consider and debate the proposed policies and decide whether government should legislate the policy

• If Cabinet decides to adopt the policy, usually the Minister would announce that policy

Drafting a Bill

• Cabinet instructs Parliamentary Counsel to prepare a draft of the proposed legislation

• Proposed legislation is referred to as a Bill

• The draft Bill must receive the approval of the party before it can be processed through Parliament to become law

Houses of parliament and law making

• The house in which the bill is initiated called the House of Origin

• House of Origin - usually the Lower House• Once the bill approved by the House of

Origin it proceeds to the opposite house to be examined and scrutinised

• This house is called the House of Review - usually the Upper House

• Names of the houses vary according to the level of parliament

House of Origin

• The bill begins the legislative process in the House of Origin by progressing through stages

initiation first reading second reading third reading

Initiation

• Relevant Minister advises the Clerk of that House that he/she intends to introduce a Bill

• Clerk then lists the Bill for its first reading in the House

First reading

• Permission is granted to introduce the Bill to the House

In Commonwealth Parliament the Clerk reads out the Bill’s long title

In state parliaments the Minister introducing the Bill reads out the Bill’s long title

• No debate takes place during this first reading and a date is allocated for the second reading of the Bill

Second reading

• Members of the House of Origin are given a copy of the Bill

• The Minister identifies the general purposes and effects of the Bill

• Debate may then take place dealing with any issues relating to the Bill

• House votes on whether the Bill will be read a second time

• If the vote is in favour, the clerk reads the Bill’s long title for a second time

Committee stage

• If the House wishes to examine the Bill in more detail, the Bill enters Committee Stage

• Committee Stage takes place in one of the following forms:

a committee of the whole – where all Members of the House consider in detail each of the Bill’s clauses and make any necessary amendments

a select or standing committee - the Bill is referred to a committee of some of the Members of the House which then considers the Bill in detail and makes any necessary amendments

Committee stage

• The committee makes a report on its progress to the House

• The House may then either consider the Bill further at the committee

stage, or the Bill may pass to the third reading

Third reading

• Minister moves a motion that the Bill be read a third and final time in the house

• Usually there is no debate

• When the House agrees to the Minister’s motion, the Bill’s long title is read a third time

• The Bill passes the House

House of review

• The Bill again passes through a series of three readings identical to those which take place in the house of origin

First reading Second reading Third reading

• If the House of Review makes amendments to the Bill, the House of Origin may accept or reject the amendments

Double dissolution

• If a Bill is rejected twice by either house over a certain period of time, a double dissolution has occurred and an election is usually called

Royal Assent

• Once both Houses have passed a Bill in identical forms, the Bill is presented for Royal Assent

• Royal Assent is the approval given to a Bill by the Queen’s representative

Commonwealth - Governor General State Parliament - State’s Governor

• Once a Bill receives Royal Assent, it is called an Act of Parliament

Commencement date

• The day an Act becomes law is known as the commencement date

• The Act states when it comes into effect • If there is no commencement date provided in an

act, it becomes law 28 days after receiving Royal Assent

• After the commencement date, the Act is enacted

Private Members’ Bill

• Initiated in Parliament without the sanction of the Government

• May be initiated by a Member of the Opposition an independent member a government back-bench member

• Follow the same parliamentary process as government Bills

except they are not drafted by Parliamentary Counsel

Types of Acts

• Amending Act Makes changes to existing law

• Repealing Act Stops existing law from having any legal effect

• Explanatory Act Describes the meaning of the Act

• Declaratory Act Declares, clarifies and identifies actual law

• Consolidating Act Combines Acts that address same issues and laws

• Enabling Act Passes law making powers to subordinate

authorities 

Chapter review

In this chapter you have looked at The Australian Parliament State parliaments Separation of powers Representative and responsible

government Limitations on powers Legislation, Bills and Acts