Chapter 13: The Parliament

Question 1

What four factors affect the ability of parliament to make law?

Answer 1

roles of house of parliament
representative nature of parliament
political pressures
restrictions on the law-making power of parliament

Question 2

What are the roles of the HOR?

Answer 2

Provide RAPID Care

Provide responsible government: ministers responsible to parliament + people. Can be challenged by shadow ministers on policy matters to expose flaws in legislation

Rep. the people: representative gov. members elected to rep people and make laws on their behalf. bills should reflect views/values of community

Act as House of Review: when bill initiated and passed by senate, H.O.R can debate + pass bill to gov-gen to receive royal assent

Publicise and scrutinise gov. administration: must publicise gov. policies so they can be debated and matters of public importance can be discussed

Initiate and make laws

Determine the gov.: party/coalition with most seats forms gov.

Control gov. expenditure: Bill must be passed through both houses before gov. can collect taxes or spend money. Money bills can only be initiated by the lower house

Question 3

What are the roles of the Senate?

Answer 3

PASS

Propose and pass bills: Can initiate bills (but not money bills) and pass those approved by H.O.R without amendment, with amendment (or request amendment for money bills) or reject.

Act as house of review: debate and review bills passed by H.O.R

act as States’ house: has equal representation from all states (regardless of population) so that they retain some power at Commonwealth level. Thus, reps interests of the states in law-making.

Scrutinise bills through committee process: committee members assess bills to determine its social, legal and political effects.

Question 4

How does a majority government in the HOR influence the effectiveness of parliament as a law-maker?

Answer 4

• party/coalition with majority seats in HOR forms government
• bills initiated by gov. likely to accepted and passed by HOR
  = gov. can fulfil election promises and implement law reform (+)
  = objective scrutiny not applied, gov bills automatically passed and private member bills easily rejected as reps usually vote along party lines + not adequately debated

Question 5

Why are private member’s bills usually introduced in the upper house?

Answer 5

• gov. usually does not hold majority of seats in Senate
• ## introducing in senate = bill can be debated/objectively scrutinised and possibly passed - not rejected for political gain.

Question 6

Private member’s bills often fail, so why do they even bother initiating them?

Answer 6

• raise media publicity

- gain media/public/parliamentarian attention

Question 7

Define law reform

Answer 7

process of constantly updating and changing the law so it remains relevant and effective

Question 8

What is a hung parliament?

Answer 8

Situation in which neither major political party wins majority of seats in the lower house after an election

Question 9

What is a minority government?

Answer 9

gov that does not hold majority of seats in the lower house and relies on support from minor parties and independents (i.e. the crossbench) to form gov.

Question 10

How does a minority government in the lower house influence the effectiveness of parliament as law-makers?

Answer 10

= Must constantly negotiate with minor parties/independents (i.e. the crossbench) to pass legislative program; may have to dilute o.g. policies - possibly going against community will (-)

= Ensures that gov. bills are objectively scrutinised and rigorously debated in lower house e.g. Gillard Gov 2010-2012 passed 432 bills (+)

Question 11

How does government majority in the upper house influence the effectiveness of parliament as a law-maker?

Answer 11

= Gov. members tend to vote along party lines and automatically pass gov. bills without applying objective scrutiny. Leads to rubber stamp + Senate cannot truly act as ‘house of review’ e.g. Liberal/National government between 2004-2007 (-)

= Gov. can efficiently pass law reforms/promises made during election campaign = can be representative and reflect views of majority of people who elected it (+)

Question 12

What is a rubber stamp?

Answer 12

When the government holds the majority in both the upper and lower house, and votes along party lines by automatically passing gov. policy —— (without applying objective scrutiny. Merely confirms decisions made by gov. in lower house)

Question 13

How does a hostile upper house influence the effectiveness of parliament as a law-maker?

Answer 13

• When the opposition holds the majority of seats in the upper house and refuses to pass legislation or only does so with considerable amendments the house is referred to as ‘hostile’.
• Harder for government to implement legislative policy agenda as opposition and cross-bench can vote together to reject gov. policy or force gov. to make significant amendments = stunt parliament in law-making + delays = less effective (-)
• More scrutiny and debate applied to gov. policy = kept in check (+)

Question 14

What is a hostile upper house?

Answer 14

When the opposition holds the majority of seats in the upper house and refuses to pass legislation or only does so with considerable amendments.

Question 15

What is the balance of power?

Answer 15

No single party has majority of seats in one or both houses of parliament

Question 16

How does the balance of power influence the effectiveness of parliament in law-making?

Answer 16

• Independents and minor parties hold disproportionately high level of power compared to their voter base; they do not represent the views and values of majority of community, yet have large influence on direction of vote (-)
• gov. forced to consider wider range of views and better reflect community interests (+)
• more objective scrutiny applied to gov. bills = parliament kept in check (+)

Question 17

Evaluate the parliamentary law-making process

Answer 17

Page 408

Question 18

Define what is meant by representative government

Answer 18

a government which reflects the views and values of the majority of people who voted for it

Question 19

How does the representative nature of parliament improve its effectiveness as a law-maker?

Answer 19

• Facilitates representative democracy. S7 and S24 require members of parliament to be “directly chosen by the people”. Hence, parliament is elected by the people and can make laws which reflect the views and values of the majority.
• Also, parliament held to account as ppl control composition of both houses. Peeps can thus influence law reform through petitions, demonstrations, social media etc.
• Upheld through regular elections as a gov. that fails to reflect majority views can be voted out of office at next election. Holds parliament to account. E.g. Liberal gov. voted out of office after passing unpopular WorkChoices legislation.
• Regular elections force candidates and political parties to consider the needs of entire society = democratic and representative government
• Victorian elections have a fixed date (last sat in nov.). parliaments cannot change date to ensure that the political climate best suits them. transparent + democratic.
• referendum needed to extend election term for federal parliament (S28 provides that term must not last longer than three years) ; parliament cannot make this change without overwhelming support of the people

Question 20

How does the representative nature of parliament hinder its effectiveness as a law-maker?

Answer 20

• as peeps control the composition of houses, parliament may initiate ‘popular’ law reform to gain voter support rather than passing ‘unpopular’ bills that may be necessary or practical
• reluctant to initiate controversial law reform that is not supported by overwhelming majority of peeps, even if it is practical and necessary e.g. took many yrs to pass marriage equality
• diplomatic pressures - parliament may be reluctant to initiate law reform in areas where there is a highly vocal minority group that opposes the change in law; fear of attracting scrutiny due to loud minority
• parliament may find it difficult to assess views of majority on controversial issues. so where society is divided, so is parliament. lost as a law-maker.
• even if changes are recommended, not necessarily adopted due to expensive and time-consuming nature of law-reform
• no fixed date for fed. elections. gov. can call an election early when the political climate best suits them e.g. fearing eco. slowdown that might make them unpopular
• regular elections seen as undemocratic as they force individuals to vote, even if they do not want to. breach of individual rights.

Question 21

Identify the different types of political pressures facing parliament

Answer 21

domestic political pressures
internal political pressures
international political pressures

Question 22

How can domestic political pressures improve parliament’s effectiveness as a law-maker?

Answer 22

Members of community can organise petitions and demonstrations to pressure members of parliament to initiate law reform that supports their cause. If there is strong community support for law reform, parliament is more pressurised to be responsive to ensure its re-election. Hence, it is more likely to be representative to maintain popularity with voters.

Question 23

How can domestic political pressures hinder the effectiveness of parliament as a law-maker?

Answer 23

Regarding issues of a controversial nature, the government may be reluctant to act for fear of backlash from sections of society, especially if the law reform is opposed by a vocal minority.

Parliament may avoid passing law reform on controversial issues due to fear of losing popularity with voters, as opposed to the merit of the law reform. Excessively pressurised and important law reform may be impeded.

Question 24

How can internal political pressures improve the effectiveness of parliament as a law-maker?

Answer 24

Voting along party lines ensures stability and certainty

Conscience vote can be allowed, ensuring that members of political parties can operate on moral compass and represent views of electorate, despite party’s opposing agenda

Can cross the floor to ensure that views of electorate are represented if they conflict with party’s agenda. Can vote on merit of policy as opposed to along party lines.

Internal party friction can encourage thorough debate of law reform (particularly in case of minority government/hostile senate)

Question 25

How can internal political pressures reduce the effectiveness of parliament as a law-maker?

Answer 25

Denial of conscience vote may detract from ‘representative government’

Internal party friction may impede government in law-making and force it to compromise policies to pass bill (particularly in case of minority government/hostile senate)

Question 26

How can international pressures improve parliament’s effectiveness as a law-maker?

Answer 26

Ratifying international treaties can improve the quality of domestic laws and encourage stronger relationships with other countries

Global events can influence important legislative change that requires the assumption of a collective responsibility e.g. COP26

Question 27

How can international pressures reduce parliament’s effectiveness as a law-maker?

Answer 27

Committing to obligations in international treaties may restrict parliament’s ability to pass different domestic laws to suit local circumstances

International organisations & powerful nations can pressurise gov. to act in the interests of other countries rather than Australia’s e.g. must keep economic partnerships in mind when law-making - may distract from representing community will and meeting needs of Australians.

Question 28

Identify the different types of restrictions on parliament’s law-making powers

Answer 28

jurisdictional limitations

specific prohibitions

Question 29

What is meant by jurisdictional limitations?

Answer 29

Parliament can only make laws within its constitutional power or jurisdiction (area of power)

Question 30

Describe parliament’s jurisdictional limitations

Answer 30

Cth cannot legislate in areas of residual power e.g. public transport, education, health etc.
BUT it can enter through
- HC interpretation of Cons.
- States referring powers to Cth
- Actual change to Cons. through referendum
ALSO can indirectly influence law-making in states’ residual area by requiring funds to be used in particular way:
- Tied grant (funding by Cth. to states where Cth specifies what the states must do with the money)

States cannot legislate in areas of exclusive power e.g. defence, border patrol etc.

Question 31

How can jurisdictional limitations improve the effectiveness of parliament in law-making?

Answer 31

Ensure parliaments can only legislate within their power = power not centralised = democratic

Allows individuals/groups to challenge legislation so it may be declared ultra vires = keeping parliament in check + protecting rule of law as parliament can’t override HC ruling that declares law ultra vires

Question 32

How can jurisdictional limitations reduce the effectiveness of parliament in law-making?

Answer 32

While High Court can declare laws ultra vires, it must wait for a case to be brought before court to make ruling, which requires $$$ + standing = parliament can be left unchecked

Question 33

What are specific prohibitions?

Answer 33

Areas in which the state and cth parliaments are constitutionally banned from making law

Question 34

Describe the specific prohibitions placed on state and cth parliaments

Answer 34

• expressly bans parliaments from making laws in particular areas e.g. states strictly banned from creating their own currency (s115) and forming their own military naval forces (s114)
• expressly bans cth from making laws in areas of residual power
• s116 bans cth from establishing a religion
• s117 bans cth from making laws that discriminate against residents of a state
• s128 bars parliaments from changing wording of cons.; can only be changed via referendum
• s109 limits law-making powers of parliament by stating that cth law overrides state law to the extent of inconsistency of their laws conflict