Ch 4: Power and the Legislature

Question 1

`What are the roles of parliament?

Answer 1

• intiating, debating and approving changes to statute law (Acts of Parliament)
• appointing and dismissing the executive (govt.) and individual executive officers (ministers)
• approving expenditure by the executive and scrutinising the detail of administration
• being a voice for the interests of individual citizens, electorates and for the expression of ‘majority will’ as reflected in electoral results
• providing a forum for the debate of public issues
• acting as a court to judge anyone who breaches parliamentary laws
• political socialisation generally and the training of future executive members specifically

Question 2

What are the functions of parliament?

Answer 2

• legislative function: specifies that parliament should intiate, deliberate and finally pass legislation. This suggests that legislative proposals are raised by both the govt. and ordinary members, drawing on a variety of sources. Bills should be thoroughly scrutinised and if necessary, amended
• representative function: implies that parliament should provide a voice for the interests and opinions of electors
  
  • delegates: act as the voice in parliament of the views of their electorate
  • trustees: electorates trust in their political judgements and are elected for that reason. In this view, parliamentarians should vote in the best interests of their electorate and be held accountable for their decisions in the next election
  • partisans: elections as contests between social groups represented by political parties. Candidates are endorsed by parties and stand for elections on a party platform. Once elected, their task is to support party policy
  • mirror representation: a representative parliament should mirror the gender, ethnic and general socio-economic patterns of a nation’s population
• check the executive: the executive is a part of parliament and accountable to it which involves;
  
  • collective ministerial responsibility: govts. take CMR for their decisions, therefore any minister who publicly disagrees with a govt. decision should resign and are required to resign if the LH passes a vote of no-confidence in them
  • individual ministerial responsibility: ministers are accountable to parliament for their conduct and should resign if parliament passes censure motion against them. Under the Westminster system, there is a chain of responsibility that implies that ministers are accountable for maladminstration or corruption in their departments
  • financial matters: role of parliament’s Public Accounts and Estimates Committees is the scrutiny of the revenues and expenditures of the executive
  • parliamentary committees scrutinise delegated legislation
• forum for debate: issues of national importance are raised and evaluated. Parliamentary Committees often investigate and report on general issues. This provides an opportunity for the expression of community views and raises awareness of political issues

Question 3

What is the definition of legislation?

Answer 3

passage of bills through parliament to become statute law

Question 4

What is the requirements for legislative legitimacy in a democracy?

Answer 4

• allow for wide ranging input
• be part of the mandate of a popularly elected govt. or arise from a widely debated current issue
• be subject to effective scrutiny in its passage through parliament

Question 5

What are the steps in the passage of legislation?

Answer 5

1. Intiation - involves notice being given that a bill is to be presented
2. First Reading - bill is introduced by its title being read out by the Clerk of the House and copies are made available
3. Second Reading - the responsible miniser outlines and justifies the bill. After adjounrment, the opposition responds and general debate about the intention of the bill occurs. Parliament may move to send the bill to a Standing Committee which will then report back (happens more often in the Senate)
4. Consideration-in-Detail Stage - amendments are proposed, debated and votes on. Some bills are debated in the Main Committee, not in the full house
5. Third Reading - the whole bill, with/without amendments is put to the vote
6. Transmission to the Other House - same steps are followed in other house
7. Assent - Royal Assent is given to a bill when it is signed by the GG (by convention, the GG will assent to legislation properly passed). Following Royal Assent the bill becomes an Act of Parliament
8. Proclamation - Act is enforceabe as law, date specified on the legislation or when it is published in the Govt. Gazette

Question 6

What are the origins of legislation?

Answer 6

• public service advice
• govt. policies put to voters at the last election
• response to immediate poltiical events and controversies
• backbenchers or minor parties in the Senate

Question 7

What are Standing Orders and who enforces them?

Answer 7

definition: permanent rules covering the conduct of the business of parliament i.e. rules of debate, the ways a Presiding Officer can maintain order and voting procedures in the chamber

enforced by the Speaker of the House in the HoR and the President of the Senate in the Senate, they can ‘name’ (warn) a member who breaches Standing Order, require withdrawal of remarks or apologies to the House and suspend a member from attending parliament

Question 8

What are the purpose of committees?

Answer 8

• maintaing the procedures and operation
• the scrutiny of legislation (including delegate legislation)
• scrutiny of executive expenditures
• investigation of general policy or community issues

effectiveness is limited by the strong part loyalties of members

Question 9

What is the role and function of cabinet

Answer 9

• cabinet is the govt. leadership group in parliament, consisting of the prime ministers and ministers holding major portfolios
• set overall govt. policy and direction, handles crisis issues, and determines the govt. legislation to be put to parliament

Question 10

What are the sources of cabinet power?

Answer 10

• a near monopoly of expert advice from the public service and political
• secret deliberation and cabinet solidarity
• party loyalty and partisan voting in parliament
• effective control over the Agenda and the Standing Orders of the House
• volume of legislation: cabinet’s access to expertise allows the govt. to submit a very large no. of bills to the House, increasing over time
• impact of the party system: the PM and cabinet, as the leaders of their party; can depend on party support for their legislative proposals. Almost all candidates stand as party members rather than individuals. Voting in the HoR is a disciplined process that reinforces cabinet control. Party control of parliamentary procedure that can be used to limit dissent and speed up the passage of a bill
• procedures that limit debate:
  
  • guillotining sets a very restricted, limited time for the consideration of a bill
  • gag: a motion that the legislation be voted on, cutting off debate on any part of the bill
  • floodgating: the rapid passage of numerous bills, especially towards the end of a parliamentary session
• semi-independence of the speaker: the speaker is elected by a majority of the House - therefore effectively the majority govt. appoints them. They are expected to be impartial, but they also interpret their duty to parliament as requiring that they enable the HOuse to get through its agenda. As a result they usually rule out of order opposition tactics that are seen as a a waste of time, reducing the ability of the opp. to scrutinise govt. bills
• impact of delegated legislation: govts. can, to some extent, bypass parliament by making major policy changes through delegated legislation

Question 11

What is the role of the opposition?

Answer 11

• the alternative govt., acting as a ‘devil’s advocate’ in parliament, highlighting the weakness of the govt. and providing alternative policies
• in reality, the opposition’s focus is on undermining the credibility of the govt. with the goal of winning the next election

Question 12

What are the tactics of the opposition?

Answer 12

• reflect the adversarial nature of parliamentary politics. they have little direct impact on the passage of legislation. However the opp. can attempt to use parliament to damge the credibility and future electoral success of the govt. They may even force a govt. to withdraw a bill due to negative publicity, in turn, a govt. may restrict the oppotunities for opp. scrutiny
  
  • the working of parliament depends on reasonable cooperation between govt. and opposition
• moving Points of Order: calling attention to claimed breache of Standing Orders, the opp. can create an opportunity to criticise a bill
• demanding divisions: a formal count of the vote that requires all MHRs to return to the chamber
• calling a quorum: a call for the memebers in the House to be counted - technically at least 1/3 MHRs should be in the chamber and debate should be suspended until this level is re-established
• refusal to grant ‘pairs’- a convention that reduces its vote by one for each govt. member unavoidably absent from the House, forcing the govt. to defer a vote until it has a majority on the floor of the House

Question 13

Define private member and backbencher

Answer 13

private member: any member of the HOuse who does not hold office in the govt.

backbencher: any member of parliament who is not a govt. minister, ministerial secretary, presiding officer or an oppositionshadow minister

Question 14

What is the role of private members and backbenchers?

Answer 14

• can allow the parliament ot deal with conscience issues and also allow the govt. to ‘test the water’in a difficult policy area
• only 19 have passed the Commonwealth Parliament since Federation, due to
  
  • a small minority of legislation introduced into the HoR and Senate results from non-executive bills
  • only a few go beyond the second reading
  • govt. can vote down with its members
  • bill will be ‘talked out’ - debating time will run out without a vote being taken
• conscience votes: during this time they can influence legislation if it is allowed, or by crossing the floor to vote against their govt.’s own bill
• i.e. Euthanasia Laws Act (1997) intorduced by liberal MHR, was passed. Support/opposition to euthanasia is a issue of conscience, not a political party issue, not a political party issue. Major parties risk alienating voters. If the cabinet intiated the bill, it would not only result in political damage, but also, run counter to Lib’s federalist philosophy as it would overturn NT legislation

Question 15

What is the role of House Committees?

Answer 15

• work of the House Committees is usually rpe-legislative - looking at issues that may lead to bills. committees hear evidence, allowing the communtiy to contribute to the law-making process
• effectiveness: limited by their composition - they all have a govt. chair and a majority of govt. members

Question 16

How is the decline of parliament thesis related to legislation?

Answer 16

• suggests that parliament is no more than a rubber stamp for govt. - more specifically cabinet decisions
• it does apply to the lawmaking process of a majority govt. in the HoR, cabinet intitates almost all bills and can control legislative debate Cabinet bills are guaranteed passage in the House
• central role of party discipline: greatest source of cabinet power - rinforced by voting system and out long tradition of adversarial, disciplined party politics
  
  • opp. can only protest and try to create wider public scrutiny of govt. bills
  • private members can supplement the govt.’s legislative agenda
• existed since 1910 when the two-party pattern was formalised at the federal level

Question 17

What are the expectations of the HoR and what is its constitutional design?

Answer 17

Expectations

• to reflect the will of the people as delivered in the last election
• for individual members of the HoR to represent the views and interests of their electorate (as delegates/trustees)
• that the parliament ‘reflects’a broad cross-section of society

Constitutional design and fulfilment

• HoR was intended to be the peoples’ house and to reflect the will of the pople, also no. of MHRs is proportional to the population
• as govt. that holds over half of the seats in the HoR can claim to be the ‘peoples’ choice’, as a consequence it can claim an electoral mandate for its policies, these policies become the basis of its legislative proposals and administrative action

Question 18

How well does the HoR fill its representative function?

Answer 18

Elections and representation

• electoral system used (single member electorate and preferential voting system) benefit the major parties by producing majority govt. and also generally allowing for reasonable representation of the opp. party
• voting system makes it difficult for minor parties to win individual seats as their support is dispersed too thinly across the nation
• although it is successful in expressing the ‘majority will’ the HoR is less efective in providing a voice for minority groups

MHRs as partisans

• predominant role of MHRs is as partisans, reflecting the fact that electors tend to vote according to party rather than individual candidates (who are generally in any case pre-selected by parties)
• in parliament, MHRs follow the party line
  
  • procedures of the house allow only limited opportunity for MHRs to speak on behalf of their electorates, restricting their capacity to be trustees or delegates of electorate interests
  • Aus. political parties impose strong discipline on elected representatives (ALP-MHRs vote to support party policy and follow caucus decisions and thus vote as a bloc in parliament, Lib-theoretically gives its parliamentarians a free vote, but effectively they almost always vote according to party policy)
• weakness of mirror representation: MHRs majority white, males and middle class in similar profesions, 25% female members, MHRs do spend a lot of time helping electors with problems i.e. dealing with bureaucracy, in a narrower sense MHRs can seek to act as representatives

Question 19

How well does the HoR fill its forum for debate function?

Answer 19

• parliament is expected to be a focus of public debate and o the flow of political information
• however there is limited time to debate public issues, HoR sits only for around 60 days, comparing unfavourably with other lower houses
• limits to debate on public issues: adjournment debates are held late at night w little media attention, two major parties dominate agenda
• formal opportunities for debating public issues:
  
  • each day, time is allocated for petitions from citizens, generally presented from their local member. A Petitions Committees reviews each petition and responds if any action is taken in an area covered, limited to raising the public profile of the issue
  • half-day each sitting week is allocated to private members’ business though none has a significan impact on legislatino (Grievance debate, Members’Statements, Matters of Public Importance and introduction of PMB)

Question 20

How well does the HoR fill its responsibility function?

Answer 20

• parliament has always been a check on executive power, modern parliaments are expected to carry out detailed scrutiny of govt. administration and to hold executive responsible for its decisions
• under the Westminster system, govt. is formed from the HoR, when tey lose a majority they should reign and the HoR should individual minsiters accountable and scrutinise govt. expenditure. This process is divided by IMR and CMR

Question 21

In summary how well does the HoR fulfill its functions?

Answer 21

Issues of party dominance

• the HoR is fairly unsuccessful in achieving the traditional functions of parliament
• the HoR has changed little since the 1910s - voting behaviour, reinforced by the electoral system, produces a dominated HoR by the 2 major parties where adversarial debate is mainly for improving their prospects at the next election

Question 22

What are the advantages and disadvantages of a strong party system?

Answer 22

Costs of strong parties

• party control reduces opportunities for debate and discussion
• reduces capactiy of the House to enforce ministerial responsibility or to apply Standing Orders and to punish breaches of parliamentary privilege

Advantages of strong parties

• stability of Aus politics reflects the established ‘two party’ system
• parliament is presented with a clear set of policies that can be defended with an electoral mandate
• parliament is capable of dealing w the large legislative agenda required by modern society
• limits on parties: debate in party room creates responsible party govt. where the executive is checked by the govt. backbenchers intent on holding their seats. Pressure groups and the media also check the executive

Question 23

What are the three differing roles of the senate?

Answer 23

• friendly senate: the senate can be little more than a rubber stamp of govt. legislation if the majority party in the HoR also controls the Senate
• hostile senate: when the opposition holds a majority in the senate they can frustrate and obstruct the govt
• balance of power senate: this exists when neither govt. nor opp. are in conrtol of the senate and the balance of power is held by minor parties and/or independents

Question 24

What are the summarised sources of increased Senate influence?

Answer 24

• the adoption of proportional voting for Senate elections in 1949
• the expansion of the size of the Senate at the elections of 1949 and 1984
• the creation of a system of Senate Ccommittees in 1970 and the extension of this system in the 1980s

Question 25

What is the impact of proportional voting on the Senate?

Answer 25

• dividing up each state’s representation made it impossible for any one party to monopolise Senate positions, also made it possible the election of minor party and independent senators
• the smaller the quota, the easier it is for minor party and independent candidates to be elected (occurred in 1984 w expansion of both houses)
• the even no. of senators from each state creates further difficulties for the most successful party (to garner an absolute majority, a party mast gain a 57.2% of a state’s vote)

Question 26

How does the Senate have an impact on legislation?

Answer 26

• primarily through proportional voting allowing minor and independent senators to be voted in along with major parties
• since 1981, the Senate has had great impact on legislation since ‘middle of the road’ parties/independents have held the balance of power, allowing for greater amendments on govt. bills and govt. bills modified as a result of negotiation with minor parties and independents before they were introduced into the Senate/parliament
• senate committees
• relative absence of executive control

Question 27

What is the impact of Senate Committees?

Answer 27

• after the 1980s, the Senate’s revisions to its committee structure improved their performance
  
  • committees had been reorganised into 8 areas each covered by a References Committee (looking at broad legislative issues w non-govt senators have a majority and occupy the chair) and Legislation Committee (reverse makeup is true)
  • allows for less partisan debate than in the chamber
• Standing Committee on Regulations and Ordinances examines delegated legislation to ensure it does not go beyond the purposes of the enabling Act, or restrict accepted freedoms. All recommendations have been accepted since 1932
• Scrutiny of Bills Committee - act as a watchdog for personal rights and freedoms in proposed bills
• committees have same powers of the Senate to summon and question witnesses and demand documents, holding public earings and travelling widely to collect info. They may recommend amendments to bills and the info they uncover can severely embarass a govt.
• estimates committees - scrutinise govt. requests for supply (right to spend public money on its programs)
• they have a great role in the legislative process, but are even more important as an accountability process

Question 28

What are the powers of Senate Committees?

Answer 28

• power to require evidence form govt. officials
• ability to seek public submissions and travel Aus to gather evidence
• right to subpoena witnesses and demand documents
• coverage of proceedings (including public evidence) by privilege

Question 29

How well does the Senate fulfill its representative function?

Answer 29

Merits

• proportional voting allows for the inclusion of minority groups and opinions in the parliamentary process, overcoming a criticism of single-member electorates that disempowers minorities while creating majority govt.
• proportional voting provides the Senate with a distinctive democratic mandate that balances that of the govt. in the HoR

Weaknesses

• one vote-one value doesn’t exist in Senate elections as the Constitutional requirement is that there is an equal number of senators from every state, however this m eans that a quota represents a different no. of senators (i.e. for one senator - less than 60 000 votes in TAS, over 715 000 votes in NSW)
• multi-member elections means senators do not have a distinct geographic consitutency to represent, weakening the relationship between senators and electors compared w MHRs. Senators are directly pre-selected by central party committees/broad party membership making them more anonymous to electors, while in the HoR in both major parties, the local electorate has some role in pre-selecting candidates

Question 30

How well does the Senate fulfill its forum for debate function?

Answer 30

• debate is less regimented and more wide-ranging as govt. generally does not have the numbers to enforces its will (i.e. through gag and guillotine) although they elect the President of the Senate
• large no. of parties creates a wider range of viewpoints
• although major parties are disciplined, LNP Senators occasionally cross the floor, as with Democrat, Greens and Independent Senators (free agents)
• revised procedures in QT prevent time wasting by govt. ministers and allow supplementary questions - a greater range of issues are raised then and seriously debated in the non-govt. time
• senate committee system provides the gratest scope for the investigation and deliberation of issues
  
  • they also provide an important channel of communication between the parliament and the general public by allowing issues of community concern to be exmined by the parliament
  • reports can influence govt. policy as govt.s by convention respond to committe reports within 3 months of their tabling

Question 31

What is the most important function of parliament and describe the ideal parliament?

Answer 31

most important function of parliament: intiiation, discussion (and amendment) and passage of legislation

ideal parliament is expected

• to be open to multiple sources of legislative ideas
• allow for public and detailed debate of legisalation by democratic representatives
• be accountable for its decisions to the people

Question 32

Describe the difference between the treatment of bills by the HoR and the Senate

Answer 32

• the party in govt., develops almost all bills considered by Federal Parliament. PMB fail if they are opposed by the govt., in essence the party system generally guarantees that cabinet intitiated bill will at least pass the HoR
• parliament’s crutiny of legislation fails to meet the ideal
  
  • HoR: opportunities for debate are limited
  • Senate: can modify/reject govt. legislation and thus acts as a check on cabinet. It considers in more detail the bills it sees as crucial (with the aid of committees -making it an effective house of review) but resources and time still limit its scrutiny. Its impact mainly comes from the determination of a few senators to use the balance of power to demand changes from unwilling govts.

Question 33

Define mandate

Answer 33

the authority provided by voters to a successful poltiical party to pursue its policies in parliament. The winning party/coalition have a govt. mandate to enact legislation and carry out administration based on policies put to the people in the election that brought it to power. In recent years minor parties hold the balance of power in the Senate have argued that they have a mandate to act as a check on govt. actions and seek amendments to govt. bills

Question 34

What is the majoritarian mandate?

Answer 34

• majority govts reflect the will of the people (mandate of the people) and electoral victory gives the govt. a majoritarian mandate
• HoR election results provide the most valid democratic outcomes, as the chamber’s seats are allocated proportionally to the population
• govt. has the right to carry out the policies they took to the people at the election and the administrative authority to respond to any other crises that arise before the next election

Question 35

What are the arguments for and against majoritarian mandate

Answer 35

• it implies that the opposition and minor parties have a legitimate role to criticise, but not to block, amend or even unduly delay govt. legislation. Reducing the role of MPs, pressure gorups and the media to that of channeling public opinion to the govt.
• complete dominnace of govts over legislation would reduce Asutralian politics to an electoral democracy where the people have little involvement in political decisions outside of elections. This critique demands increased participation by citizens and a more active role for parliamentarians and suggests that all democratically individuals or groups have mandate

Question 36

What is the balance of power mandate?

Answer 36

• the assertion that, on the basis of their electoral support, minor parties have a legitimate mandate to modify or block govt. legislation (more often applied to the Senate), acting as a check and balance on govt. legislation
• supported by many electors being dual voters- voting for a major party in the House, but for minor parties for the Senate
• justifies the assertive role of cross-benchers in the HoR

Question 37

What is a hung parliament?

Answer 37

• when a minority govt. forms - depending on the support of some cross benchers i.e. 2010
• hung parliament can result in poltiical instability but that is not a necessary outcome - the govt. no longer controls numbers in the lower house and if its unwilling to compromise it may be quickly forced to call a new election. However most minority govts are quite stable because the govt. is willing to accept cross bench (and even opp.) input into its bills and to accept that it will not get all its legislation through parliament (same as in Senate)
• mandate is made more complex by minority govt. In negotiating suffecient support to be able to pass legislation a minority govt. has to accept modifications to its agenda to gain the support of minor parties and independents
• a govt. mandate is only as strong as its ability to get bills passed through parliamnt and it can only overcome the barriers it faces by risking a new election, the debate about mandate is really a debate about the processes of democracy - the electoral system and parliamentary processes

Question 38

What is an example of a hung parliament in Australian politics?

Answer 38

Gillard ALP govt 2010

• ALP govt. was able to remain in power w the support of 4 cross benchers
• the agreement w the cross benchers involved
  
  • they would support ALP in any no confidence motion and to endeavour to avoid any early election. They remained free to vote as they wished on all other matters
  • they set out parliamentary, electoral and other reforms that were intended to reduce major party domination of political processes
  • policy requirements for each individual i.e. Greens - climate change legislation
• the new govt. implemented reforms to HoR processes i.e. private members business and QT, legislative role of committees increased
• govt. was now reuired to meet and consult w the cross bencher on its bills and the expanded scrutiny process took away to power to ‘ram’ bills through the House, although the process was slower, almost all bills were passed

Question 39

What are suggestions for the reform of the HoR have the intent of making it more effective in?

Answer 39

mainly aimed at the ‘decline of parliament’ claims - where the House fails to achieve its theoretical functions and it has been little more than an electoral college whose role is to support, not scrutinise, the executive

• scrutinising legislation and govt. administration
• representing and expressing community interests and concerns

Question 40

What are suggested reforms for the HoR of procedural change?

Answer 40

• more independent speaker
• longer sitting time
• increased procedural opportunities for debate on legislation and public issues
• changes to QT
• more effective committees
• greater opportunities for citizen participation
• broader representation of the community
• parliamentary codes of conduct

Question 41

What are suggested reforms to the HoR surronding reducing party dominance?

Answer 41

• fixed terms for the parliament
• increased opportunities for ‘free votes’ by MHRs
• financial independence of the parliament

Question 42

What are suggested reforms for the Senate?

Answer 42

mainly surrond making the Senate a more effective house of review

• removing the power of the Senate to block Supply - if the events of 1975 were repeated, Aus would have unstable govt. The power is unneccessary because the people at the next election can remove a failed govt.
• allowing automatically for a six-month period fof the Senate to consider non-money bills
• giving Senate committees more extensive powers of inquiry such as the power to require evidence on oath from ministers and public servants
• requiring Senate approval for significant appt. i.e. HC justices
• requiring Senate confirmation of major policy foreing policy initiaties i.e. Treaties and declarations of war
• abolish the nexus - requiring a full senate election simultaneously with the House in every election
• minor parties must achieve 5% primary vote to be elected
• exclusion of ministers from the Senate