Chapter Four: Functions of the Commonwealth Parliament

Question 1

Malapportionment

Answer 1

A situation in which the number of voters in different electorates are unequal, and therefore a person in one electorate receives more representation than someone in another electorate. For example, in Australia a voter in Tasmania receives much more representation in the Senate than a voter in New South Wales does.

Question 2

Delegate Representation

Answer 2

A theoretical model for representation in the House of Representatives. In this model, an elected member relays the wishes of their electorate and purely represents their interests, taking into account little of their own opinion or wishes.

Question 3

Trustee Representation

Answer 3

A theoretical model of representation for a member in the House of Representatives. In the model, an elected member makes their own judgments about what their constituency wants and acts based on those judgements. The constituency votes them in based on this trust, and hold them to account in the next election.

Question 4

Sovereign State Interest Representation

Answer 4

A theoretical model of representation practiced in the Senate. Modelled on the US Senate, this model sees Senators acting on their interest of their states.

Question 5

Single Transferable Vote System

Answer 5

The proportional system of voting adopted in the Senate which increases the proportionality between the number of votes a party or independent receives and their representation in the Senate.

Question 6

Partisan Representation

Answer 6

The model of representation which is followed by almost all Senators and members of the House in reality. In the model, members will almost always represent the policy of their own party and act accordingly, although breaches of party policy are sometimes known to occur.

Question 7

Mirror Representation

Answer 7

A form of representation which follows direct proportionality between the people who vote for members in the Senate and the Senates composition. The Senate acts as a ‘mirror’ to society. Although mirror representation is impossible to fully achieve, its principles are still significant, the Senate tends to have more women and more diverse candidates, as well as increased representation for minor parties.

Question 8

Statutory Process

Answer 8

The Westminster style process to which statue bills follow. First they are read in the first reading and recorded in Hansard, subsequently they are explained in detail by the minister behind the bill and then the floor is open to debate. All members in the second reading have an opportunity to present their views on the bill.

Question 9

Gagging the Second Reading Debate

Answer 9

Because the government has a majority in the lower house, they can always win any vote on the floor. Thus, the government will always win a ‘gag’ motion, which suspends debate and calls a bill into voting. This can be used to quickly prevent any debate in a bill, and was used by the Abbott government in 2013 to pass their Australian Building and Construction Commission bill quickly through the lower house.

Question 10

Guillotining the Debate

Answer 10

Similar to gagging the debate, the government can allocate a certain time limit to debate for a bill, and will always win a vote on the floor for this. This allows the government to quickly pass a bill through the lower house.

Question 11

Flood-gating Bills

Answer 11

A strategy employed by the government to quickly pass bills, it involves passing a number of bills in quick succession and using gag order and guillotining bills to prevent any one of them from receiving a lot of scrutiny.

Question 12

Federation Chamber

Answer 12

A Committee comprised of all the members of the House of Representatives which allows for non-contentious and unanimously supported bills to be passed very quickly through the House.

Question 13

Senate Standing Committee for the Selection of Bills

Answer 13

A committee in the Senate which decides whether or not bills should be referred to specialist committees for further discussion. Un-contentious bills are usually allowed straight into the Senate where they can be more quickly passed.

Question 14

Vote of no confidence

Answer 14

A motion that can be moved in the House of Representatives which if passed declares that the Prime Minister has lost the confidence of the House and must resign from their position.

Question 15

Westminster chain of accountability

Answer 15

A number of conventions which ensures that the government is held to account by the people, through the Parliament to the executive and down to the public servants in government departments.

Question 16

Parliamentary Privilege

Answer 16

A benefit that all Parliamentarians receive, which makes them exempt from certain normal laws about free speech. The tort of defamation is an example, Parliamentarians are free from speech laws like this so that they can feel safe expressing their own opinion in Parliament.

Question 17

Decline of Parliament Thesis

Answer 17

An argument which states that the modern Australian parliament is a failed institution because in practice it cannot meet any of the theoretical functions it is supposed to fulfil.

Question 18

The Golden Age of Parliament

Answer 18

A reference to a period of time in British history where the parliament could fulfil its Westminster Conventions by holding the executive completely to account through the use of censure motions and votes of no confidence.

Question 19

What are the four key functions of Parliament?

Answer 19

The four key functions of Parliament are
• Representation, of the people within Australia who vote parliamentarians in
• Legislating, making statute laws to better the community
• Responsibility, holding the executive to account for their actions
• Debate, being a forum for the discussion of political issues

Question 20

What is the significance of section 51?

Answer 20

Section 51 lists several of the enumerated powers of the executive, most of these are concurrent and can be exercised by the states however some are exclusive by their nature, such as the ‘quarantine power’, states cannot make laws in this matter. Other powers are listed in the concurrent powers but are made exclusive elsewhere in the constitution, such as the defence power (vi) which is made exclusive by section 114 which prohibits the states from having armed forces, and 119 which gives the commonwealth the right to protect the states from invasion.

Question 21

Explain the significance of section 53

Answer 21

Section 53 of the constitution gives the Senate equal power to the House of Representatives except for the fact that they cannot create nor amend money bills. Even this provision holds little actual binding power, the Senate can refuse to pass a bill and then informally propose that they will pass it if it is amended in a certain way, which thus makes the Senate equal in power to the lower house. This is significant since it acts as a major check on the House of Representatives and by extension the government.

Question 22

Explain the difference between parliamentary representation in theory and in practice

Answer 22

In theory, parliamentarians represent their constituency through the delegate or trustee model if they are in the House of Representatives, and the sovereign state interest model of they are in the Senate. In practice, almost every parliamentarian follows the partisan representation model. This is due to a number of factors:
• Modern voters do not identify with a local personality as much as they do with a political party. This means that the party of the candidate they are voting for becomes a much bigger factor in their vote choice than their own personal characteristics or level of trust.
• Modern voters also align much more with a party personality such as the Prime Minster or leader of the opposition. In 2007, Kevin Rudd generated massive public attention with the launch of his election campaign and attracted a significant number of voters. What won him the election however was the election of individual Labor candidates.
• At federation, representation of the states may have seen as a pressing issue for the states, but in modern Australian politics the states are not in conflict with one and other as much, so almost all Senators follow the partisan model of representation.
Senators can be more resistant to party discipline because of their six year terms, angering the party in a six-year term gives allows a Senator time to fix the relationship, and some candidates might not even want to stand for re-election. Other members may go against party wishes for other reasons, in 2014 liberal MP Dr Sharman Stone voted against her own party when they were pushing to close down a fruit canning factory in her electorate. She criticised her own government, and in doing so adopted the delegate or trustee model of representation.

Question 23

What are the theoretical expectations of legislation in Parliament?

Answer 23

Theoretically, legislation in Australia follows a number of key principles.
• Legislation is scrutinized by the opposition and other members in order to make sure that the legislation is the best it can be
• Legislation has a diversity of input, reflecting the diversity of Australian voters and their elected representatives
• Legislation can be initiated by any member of Parliament, private members and members of the executive
• Legislation follows the ‘statutory process’ which ensures that a number of these conditions are met
• Legislation is passed through a number of committees which provide expert and non-partisan advice and scrutiny on the bill. In this process the legislation is heavily researched and debated, and possible amendments and considerations are outlined
• The Senate follows its role as a ‘house of review’ and equally scrutinises and analyses the legislation

Question 24

Describe the impact of executive dominance in the House of Representatives on legislation

Answer 24

Executive dominance in the lower house compromises the scrutiny of bills and the diversity of views that should be expressed in legislation. Almost all bills originate from cabinet, private members bills rarely get passed the second reading stage. For example, in 2015 opposition leader Bill Shorten introduced a marriage equality bill into the lower house, however the government used its majority vote to adjourn the bill indefinitely. All bills being introduced into the house are also controlled by the House Selection Committee which is chaired by the speaker of the house and is dominated by the government. This means that few private members bills make it to the first reading stage.

Question 25

In reality, what is the path of parliamentary legislation in the lower house?

Answer 25

Parliamentary legislation can go through two possible paths. Non-controversial and uncontested bills go through the Federation Chamber, which immediately proceeds the bill to the upper house in the shortest amount of time. There must be unanimous support for the bill for this to occur. If a bill is controversial and contested, it will follow the full statutory process but is subject to guillotines, flood-gates and gags. Bills can be referred to standing and select committees where they will receive full consideration and analysis.

Question 26

List and explain the features of the Westminster Chain of accountability in relation to a responsible parliament.

Answer 26

In parliament, the executive is held account in a number of ways, which ultimately ensures that the government is held to account by the people. This ensures a responsible parliament.

a) The Prime Minister can at any time be removed from office through a successful vote of no confidence in the House of Representatives
b) Ministers can be held to account for their actions through censure motions which dismisses them for misconduct
c) Question time must be a procedure in which any member of the House can ask any question of any minister they like, and it must be answered on the spot, or in writing if the minister needs to confer with their colleagues. Ministers must not mislead the parliament when answering questions, otherwise they are held accountable by a censure motion.
d) The executive can only spend within accordance of the law. All government expenditure must be expressed through legislation and that legislation must follow regular statutory process.
e) Parliament must have standing and select committees which express a diversity of opinions spread out across a number of specialist topics. These committees must have a powerful investigative function and can investigate into the actions of the executive.

Question 27

Describe how responsibility is shown in a realistic Australian Parliament

Answer 27

The government by definition have a majority in the House, except in the case of a minority government. This means that votes of no confidence and censure motions will never pass in the lower house, which virtually completely undermines the Westminster principle of collective ministerial responsibility. The reality is that unpopular Prime Ministers will be deposed of within their party instead, and unpopular Ministers will be removed by the Prime Minister. In the Senate, there have been successful censure motions in the past, in 2015 Senator George Brandis was the victim of a censure motion enacted by Senator Penny Wong.

Question 28

Explain the theoretical options for debate

Answer 28

Members of Parliament are given a number of options to debate. These include: 
•	Grievances 
•	Urgency motions 
•	Matters of public importance 
•	Private member’s business 
•	Ministerial statements 
•	Adjournment debates
•	Second reading debates 
•	Question time 
Most of these forums of debate are linked in to the other roles of parliament, which ensures that debate is weaved throughout the structure of how Parliament operates. Parliamentary privilege also ensures that Parliamentarians can present the best quality debate, and parliamentary privilege is regulated through committees in both houses which ensure that it is not abused. For example, in 2002 senator Bill Heffernan accused justice Michael Kirby of soliciting male prostitutes in government cars, which was a completely baseless accusation. Bill was forced to make an apology and was removed from his position in the ministry.

Question 29

Explain how parliamentary debate in practice is limited in Parliament

Answer 29

In practice, Parliamentary debate is limited by the executive dominance, heavily so in the House of Representatives.

a) The government allocates all the time in a sitting day, and they can restrict debate by allocating as much time as possible to government business.
b) Grievances, urgency motions, matters of public importance, private members business, adjournment debates and other debate functions are severely limited if the government decides to allocate as much time as possible to government business.
c) Gags, guillotines and flood-gating can all limit debate
d) The floor in the House of Representatives is highly adversarial, as a result, parties are often trying to gain the political advantage rather than actually negotiate in political debate. Question time becomes a function where political parties must perform in front of the public and the media to score political ‘points’.

Question 30

Explain how parliamentary debate can still occur in practice

Answer 30

Parliamentary committees provide a way for parliamentary debate to occur, house committees are far less adversarial than the floor of the house, which allows for genuine debate to occur away from the presence of the media. In the Senate, debate can occur much more than it can in the house since the government usually does not have a majority in the Senate. This means that more non-government Senators are able to speak and the government cannot restrict debate. This is true for Senate committees as well, which are more diverse than house committees and offer opinions from many non-government and specialist members.
Much debate also occurs outside the traditional parliamentary venues of the Senate and the House of Representatives. Each political party has its own meeting place where meetings with all Senators and members from that party are present. Here they can debate policy issues, represent their constituency and hold their party leader to account. Meetings such as this are completely private and free from the media, which allows MP’s to disregard any political impact the debate might have.

Question 31

Validate the key arguments which support the Decline of Parliament Thesis

Answer 31

The following failure in the theoretical functions of parliament supports the decline of parliament thesis.
Representative Function
• Parliamentary members fail to represent their individual constituents through the delegate or trustee models, instead almost all elected members follow the partisan model.
• The majoritarian electoral system in the House of Representatives eliminates a large degree of diversity within Australian citizens, which limits the extent that the house is a ‘peoples house’.
Legislative Function
• Guaranteed executive dominance in the lower house ensures that the government has an almost complete monopoly over all proposed legislation, private members bills being very rarely put past the second reading
• This dominance also allows for the gagging, flood gating and guillotining of bills
Responsibility Function
• The ability for the government to decide on the standing orders of parliament, especially those around question time
• The undermining to the theoretical Westminster conventions for responsible government. A censure motion or vote of no confidence will never pass in the house due to executive dominance.
Debate Function
• The ability for the executive to manipulate standing orders and time allocations as well as gagging, guillotining and flood gating to limit debate in the house
• The lack of diversity in the lower house leads to lower quality debate
The singular most defining cause leading to the decline of parliament is clearly the rise of a strong executive.

Question 32

What two factors have historically led to a strong executive in the Australian political system?

Answer 32

Historically, the majoritarian electoral system which exaggerated the representation of major parties and strong party discipline within the ALP and the Liberal party have led to a strong executive.

Question 33

What is the main argument that can be used against the decline of parliament thesis?

Answer 33

The decline of parliament thesis judges the success of parliament by its ability to adhere to the Westminster conventions of responsible government. In reality, those conventions were applied to the British parliament during the ‘Golden Age’ of British parliament, when the context behind the creation and structure of the system was completely different. Australia’s political system was created under completely different context, and as a result it follows a Wash minster hybrid system. In order to validate the success of parliament, it is therefore not viable to compare Parliament to Westminster Conventions for responsible government, but rather it should be validated on the principles of good government. These are accountability, transparency, adherence to the rull of law, responsiveness, equity and efficiency.

Question 34

What are the key areas used to judge whether the Australian parliament follows good government?

Answer 34

• Accountability
• Transparency
• Rule of law
• Equity
• Efficiency
• Responsiveness

Question 35

Argue that the Australian parliament is accountable, and therefore follows good government

Answer 35

Within the House, the executive is dominant but there are still some instances where they can be held to account. During question time, it is required by rule that ministers must not mislead the Parliament when answering any questions. Furthermore, despite gags, guillotines and flood-gates, there are still instances where members can offer debate and there is a possibility that private members bills can be introduced. House Committees are less adversarial than the floor of the house itself, and generally are more cooperative.
The Senate is the major way in which the government is held to account. The executive rarely has a majority in the Senate, and the chamber is more diverse than the lower house. The government is forced to negotiate with cross-benchers and the opposition, and in Senate committees the quality of debate and diversity of debate is high. The government cannot easily circumvent opportunity for debate due to the lack of its majority. The Senate has the power to reject and propose amendments to government enacted bills.
In 2014, the Senate effectively held the Abbott government to account by refusing to pass many government sponsored bills due to the government’s failure to meet many of its election promises. The bills blocked included the higher education reform bill, the building and construction commission bill and the paid parental leave bill.

Question 36

Argue that the Australian parliament is transparent, and therefore follows good government

Answer 36

Opportunities for scrutiny of the government in both the upper and lower houses ensure that the government remains transparent. Senate committees are extremely significant in this role, special investigatory committees monitor the actions of ministers and their public servants, sourcing evidence from public ministers who are protected under parliamentary privilege. This allows for the actions of the government to be monitored and held to account. The government must also be transparent to its own party when the party meets.

Question 37

Argue that the Australian parliament follows the rule of law, and therefore follows good government

Answer 37

The constitution limits the jurisdiction of the parliament, and the High Court acts as a significant check to the government. All parliamentarians follow the same laws that are passed in parliament and abuse of power from members of the executive is checked by the High Court. For example, in 2011 the Gillard Government’s asylum seeker policy was ruled unlawful by the High Court, since the actions of the executive did not comply with the Migration Act of 1958.

Question 38

Argue that the Australian parliament is responsive, and therefore follows good government

Answer 38

Governments and all lower house members have relatively short election terms of 3 years, which means that a government must always be responsive to community concerns, if not the public will hold them to account at the next election. The Senate acts as a more diverse chamber and a more diverse representation of the community, which the government must negotiate through and respond to community concerns in if they wish to pass legislation through parliament. Minority governments are especially responsive, although somewhat rare. In 2010, the Gillard minority government negotiated with Greens member Adam Bandt. In return for his government support, the ALP agreed to introduce a price on carbon emissions, responding to concerns within the community.

Question 39

Argue that the Australian parliament is equitable, and therefore follows good government

Answer 39

Through the Australian electoral compromise, parliament is able to both have a stable government and also represent a diverse range of opinions and political beliefs. The Senate being a proportional house is highly representative of Australian diversity, and it has Committees which ensure that bills do not discriminate unfairly against any type of minority or group within Australian society.

Question 40

Argue that the Australian parliament is effective and efficient, and therefore follows good government

Answer 40

The government is created in the lower house through the use of a majoritarian electoral system. This ensures that there is almost always a stable government created with a parliamentary majority, which contributes to stable and efficient government. No government has ever lost a vote of no confidence. The support from the people gives the government a majority and allows it to develop a legislative program which it can easily introduce into parliament. Most bills are agreed to by both major parties, and bills which are blocked by the Senate are mostly passed with agreed amendments. It is rare that the Senate is highly hostile and blocks most bills.