Parliament

Introduction

In Australia, the legislature (or law-making body) is called the parliament. It is one of the three branches of government. The other two are the executive and the judiciary. The executive government comprises the government ministers and public servants, which implements the laws made by parliament. The judiciary or courts interpret those laws.

Australia’s founding fathers modelled the Commonwealth Parliament on the Parliament of the United Kingdom at Westminster in London and the Congress of the United States of America, located in Washington. Although Westminster is the dominant theme, the influence of Washington is significant. Like the legislatures in Washington and Westminster, the Commonwealth Parliament is a bicameral legislature: it has two houses or chambers. The lower house is the House of Representatives and the upper house is the Senate.

Because Australia is a federation of states, there are six state parliaments in addition to the national parliament located in Canberra. The state parliaments were first established as colonial legislatures before federation in 1901. All state parliaments, with the exception of Queensland (which abolished its upper house in 1922), are bicameral legislatures. In most cases, the lower house in each state is called the Legislative Assembly and the upper house is called the Legislative Council. There are also two territory parliaments (called legislative assemblies), following the more recent grants of self-government to the Northern Territory and the Australian Capital Territory. The Queensland parliament and the parliaments of the Northern Territory and the Australian Capital Territory are unicameral or single-house parliaments.

In our Westminster-like system of government, the territory, state and Commonwealth parliaments have four key roles:

  • making laws;
  • representing the interests of the people in their electorates;
  • choosing from its membership the head of the executive government (the Prime Minister, Premier or Chief Minister); and
  • keeping the executive government accountable to the people.

However, before considering these roles, we will consider the three components of the Commonwealth Parliament, as specified in sections 1 and 2 of the Australian Constitution: the House of Representatives; the Senate; and the Queen (represented by the Governor-General).

The House of Representatives

The House of Representatives, which gets its name from Washington, is modelled on the Westminster House of Commons. The members of the House of Representatives are elected from single member electorates for a term of up to three years. Each electorate has a name and a “seat” in the House of Representatives. There are currently 150 members in the House of Representatives. Under section 24 of the Australian Constitution, the number of members in the House of Representatives is roughly double the number of senators.

The House of Representatives is the dominant of the two houses, and decides the party or coalition of parties that will form executive government.

The Senate

The Commonwealth Senate was conceived of as a states house and as a house of review, not unlike the Senate in Washington. Each state elects 12 senators, who represent the entire state. Half-Senate elections are held every three years and six senators are elected for each state. Senators are elected for six-year terms. There are also two senators each for each the Northern Territory and the Australian Capital Territory, all of whom are only elected for three years at each half-Senate election. The total number of senators is 76 (twelve for each of the six States plus two each for the Northern Territory and the Australian Capital Territory).

The Queen

The Queen is an institutional element of the Commonwealth and state parliaments. Her role in parliament is essentially symbolic. It includes the opening of parliament and giving the royal assent to proposed laws that have been agreed by the legislative chambers. It is usually performed by the Governor-General in respect of the Commonwealth and the state governors in each state on the Queen’s behalf in her absence.

Law making

The central function of the legislature is law making. The law making process begins with a proposed law, called a bill. Bills consist of a series of numbered clauses. Members of the executive government of the day (the Prime Minister or one of the other ministers of state) sponsor government bills. Members of parliament can also introduce a private member’s bill, which are proposed laws that do not have the support or authority of the government of the day. Because, the executive government controls parliamentary business (especially in the House of Representatives), the government controls the legislative program. The pressure of business is such that there is little time for private member’s bills Consequently, there have been very few private members’ bills that have made it through both houses of parliament to become laws of the land.

Three readings

The two houses of the Commonwealth Parliament, the House of Representatives and the Senate (although not always in this order) consider these bills consecutively. In each House, a bill is considered in three stages (called “readings”):

  • The first reading is purely formal in nature. The Clerk of the House or Senate simply reads out the title of the bill. After the first reading, the bill is made available to all Parliamentarians.

    After the first reading, bills may be sent to select or standing committees of the House for additional scrutiny. This practice is much more common in the Senate. The select or standing committee will report back to the House their findings and recommendations before the conclusion of the second reading debate.

  • The second reading begins with the bill’s sponsor saying, “I move that the Bill be now read a second time”. A second reading speech and the tabling of an explanatory memorandum follow this. Under the Acts Interpretation Act 1901, the courts can use the second reading speech and the explanatory memorandum when they interpret legislation. Debate on the bill is then usually deferred to a later date. The second reading debate is about the broad principles of the bill. The second reading debate is normally the most substantial debate that takes place on a bill. At the conclusion of the second reading debate, the House or Senate will vote on the motion, “that the Bill be now read a second time”. If this motion is accepted, the House is taken to have given agreement to the bill in principle.
  • In the third reading stage, the House or Senate considers the bill in detail and debates each clause in the bill, one after the other. It is at this point that amendments to the bill can be suggested and voted on. This stage allows for the detail of the bill to be considered. When every clause has been considered in order, the Minister will move that the bill be read a third time. A vote on this motion is taken without debate. If successful, the bill is considered to have passed the House.

Once a bill has passed one House, it will be transmitted to the other House and then go through a similar process in the other House of Parliament. When both Houses of Parliament have agreed to the bill in exactly the same form, it can go to the Governor-General for the Queen’s Assent. The Governor-General’s role is essentially symbolic and royal assent has never been declined in Australia’s history. Once assented to, a bill becomes an Act of Parliament.

Financial legislation

Under section 53 of the Australian Constitution, the legislative powers of the Senate are almost equal to those of the House of Representatives. The key exceptions are that the Senate cannot:

  • initiate proposed laws to spend money or raise taxation; and
  • amend proposed laws which will spend money on the ordinary annual business of government or impose taxation.

However, the Senate can reject, defer their consideration of, or return to the House of Representatives with a list of suggested changes any such proposed laws.

Although the executive arm of government cannot spend money or raise revenue without the approval of Parliament, the government has the sole right of financial initiative. Only the government can successfully propose laws to spend money or raise revenue. Under section 56 of the Constitution, all such laws cannot pass the House in which they were originated without a message of support from the Governor-General. Under the conventions of responsible government, a message of support is only given with the agreement of the government of the day.

Disagreement and double dissolutions

When the two Houses of Parliament do not initially agree on the contents of a bill, it is usual for negotiations to continue. Amendments to amendments may be made or alternative amendments proposed until an acceptable compromise is reached. Very occasionally, the impasse cannot be broken and a bill is laid aside and not proceeded with.

A disagreement between the two Houses can trigger a simultaneous dissolution of both Houses, or a double dissolution, leading to a general election for all members of both Houses of Parliament. The specific requirements for a double dissolution are set out in section 57 of the Australian Constitution. If the Senate fails to pass a bill agreed to by the House of Representatives and, after a minimum of 3 months has elapsed, again fails to pass the same bill to which the House of Representatives has again agreed, the Prime Minister may advise the Governor-General to dissolve both Houses of Parliament.

If, after the general election, the same bill is again passed by the House of Representatives but fails to pass the Senate, a joint sitting of both Houses may be held. The only joint sitting for this purpose occurred in August 1974.

Limitations on the Commonwealth’s law making power

Federalism and constitutionalism have resulted in a substantial Australian deviation from the Westminster model. Unlike the Parliament of the United Kingdom prior to its entry into the European Economic Community or the Parliament of New Zealand, the Australian Parliament neither enjoys constitutional sovereignty nor legislative supremacy.

Writing in the 19th century about the English Constitution, A V Dicey said that the Parliament at Westminster had the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. However, the Australian Parliament is constrained by the Australian Constitution. The Constitution is the supreme law, which the Parliament cannot amend without a national referendum that is carried by a majority of voters overall, and majority of voters in a majority of states.

The legislative power of the Commonwealth is further constrained by sections 51 and 52 of the Constitution, which limits the legislative competence of the Federal Parliament to the specific areas identified in the Australian Constitution. State governments have the authority to legislate on anything, save those issues exclusively reserved for the Commonwealth Parliament. In most cases, State governments can legislate where the Commonwealth has authority. However, under section 109 of the Constitution, if both the Commonwealth and the States legislate on the same matter, then the Commonwealth law prevails where they are inconsistent, and the inconsistent State law is invalid. The High Court of Australia acts as the umpire between the Commonwealth and the States. The High Court can declare invalid any law of the Federal Parliaments it finds unconstitutional and any State law it finds to be inconsistent with a valid Commonwealth law.

Choosing the head of government

In addition to making laws, Westminster-styled parliaments also have the central role in selecting from their number the person who will be head of the executive government. In the language of the US Constitution, the lower House of Parliament is the Electoral College which determines who will be the Prime Minister (or Premier in the States).

This parliamentary role is discussed further in the sections on the executive government and the Prime Minister.

Holding the Executive accountable

A fundamental tenet of the Westminster principle of responsible government is that the executive branch of government is accountable to the Parliament. The key doctrines of accountability are individual and collective ministerial responsibility to Parliament. The importance of these doctrines is that they work to prevent the executive arm of government acting irresponsibly.

Under the convention of collective Cabinet responsibility, the Government as a whole must enjoy the confidence of House of Representatives at all times. If the House of Representatives passes a vote of “no confidence” in the Government, it leaves the Governor-General with few choices: either appoint another Prime Minister who has the confidence of the House or, if none can be found, call a general election for the House of Representatives.

Votes of “no confidence” in the Government from the Senate (or State upper houses) have no practical effect. They do not necessitate the Prime Minister (or State Premier) to tender their resignation to the Governor-General (or State Governor). However, should the Senate fail to pass an annual money bill (the budget), the Government is expected to resign and/or advise the Governor-General to call an election.

Individually, Ministers are responsible to Parliament for their own actions and those of their personal staff and Department. They should retain the confidence of the House in which they sit. If they lose that confidence, the expectation of the Westminster system is that the Minister would tender his/her resignation to the Governor-General. However, there have been cases where Ministers (particularly Ministers from an upper house where the Government does not have a majority of members) have endured votes of no confidence and continued in office because they had the support of the Prime Minister or Premier of the day.

By means of parliamentary question time (also known as questions without notice), questions on notice and committees of inquiry, the Parliament is able to inform itself about the actions of executive government. Without information, Parliament would be unable to keep the executive accountable. Unlike the US President, who can avoid public scrutiny for long periods of time, the Australian Prime Minister and other Ministers are questioned for around an hour in both Houses of Parliament on every day on which Parliament sits. The Parliament can also use censure motions, motions of no confidence, “urgency” motions and debates on matters of public importance to restrain and control executive government.

However, it should be noted that the executive’s control over the legislature and strong party discipline has blunted these mechanisms of accountability. In practice, it is not Parliament as such but the party in government and their assessment of future electoral success that exercises the greatest control over the executive.

The conventions of responsible government are discussed further in that section.

Representation

Possibly the most under reported role of Parliament is its representative role. Parliament is a representative assembly. Representation is a fundamental contribution that Parliament makes to political deliberation.

Some have questioned the effectiveness of the representative mechanism - fewer women, fewer working class people, fewer people from ethnic and non-English speaking backgrounds, and more people with a tertiary education than the Australian average. The electoral system (especially in the House of Representatives) favours the two dominant party groupings over the diversity of views in the community. However, few disagree with the ideal of representative government.

The electoral process, the essential mechanism of representation, is discussed in more detail in the section on elections.

Parliamentary privilege and contempt

Because of the importance of their parliamentary duties, members of parliament enjoy some special privileges:

  • freedom of speech - flowing from Article 9 of the Bill of Rights 1689. Members of parliament are protected from prosecution if in a debate they make a statement that would otherwise be a criminal offence. They may not be sued if they make defamatory statements when taking part in debates in the House. This enables them to bring forward matters without fear of the legal consequences.
  • members cannot be required to attend courts or tribunals as witnesses or be arrested or detained in civil matters on parliamentary sitting days and for five days before and after sitting days.

    Each House of Parliament has the ability to punish for contempt persons or organisations for:

  • breaching parliamentary rights or immunities; or
  • obstructing or impeding the House in the performance of its functions or Members or officers in the discharge of their duties.

The most notorious exercise of the power to punish for contempt occurred on 11 June 1955 when a journalist, Frank Browne, and the proprietor of the Bankstown Observer, Raymond Fitzpatrick, were charged before the bar of the House for breach of parliamentary privilege and given three months gaol. They had published articles attacking the Labor Member for Reid, Charles Morgan, who had been a former business associate of Browne’s. They accused Morgan of running an immigration racket before he had entered Parliament. The House found them guilty of a serious breach of privilege by publishing articles intended to influence and intimidate a Member in his conduct in the House. The High Court dismissed Browne and Fitzpatrick’s appeal finding that the Houses of Parliament were empowered under section 49 of the Constitution to imprison people they find guilty of contempt.

This case raised some challenging issues. Browne reminded the House he had not been charged, that he was denied legal representation, that the case against him had not been proved, that he did not have the right to cross examine his accuser, and that he had no right of appeal. Parliament had acted as accuser, judge and jury of its own case.

Since then the Federal Parliament has enacted the Parliamentary Privileges Act 1987 which has limited and clarified the privilege and contempt powers of the Federal Parliament. Each House may impose penalties for contempt limited to imprisonment not exceeding six months for a person, or a fine not exceeding $5,000, or not exceeding $25,000 in the case of a corporation. It has also made the imposition of penalties subject to judicial review. This Act also prevents members of parliament from being expelled. As a result, the injustice suffered by Browne and Fitzpatrick should not occur again in the Federal Parliament.

However, the misuse of parliamentary privilege and contempt powers remains possible in state parliaments. In Western Australia in November 1992, a petition was brought by a former senior public servant, Brian Easton, and tabled by Labor backbencher, John Halden. Easton claimed that the Official Corruption Commission had referred to police the investigation of allegations that the then Leader of the Opposition, Richard Court, had provided confidential documents relating to Exim Corporation (a State-owned enterprise of which Easton was managing director) to Easton’s estranged wife, Penny Easton. The petition alleged that the documents were used as evidence in divorce proceedings against Easton by his former wife, leading the Family Court to believe that Easton was due to receive $200,000 more than he obtained on retirement. Easton’s wife committed suicide four days after the tabling of the petition. In January 1995, with Richard Court installed as Premier, Easton was gaoled by the state parliament for one week after he refused to apologise for misleading parliament.

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