Evaluation of Lawmaking Systems Flashcards
How are the branches of government related?
Each has the ability to make law and each also supervises its own lawmaking and the other branches of government.
What are some strengths of parliament-made law?
upholds the rule of law, enables representative government, provides for sovereignty of parliament, ensures responsible government and parliamentary review, enables comprehensive lawmaking, parliamentary privilege.
Why is the rule of law a strength of parliament-made law?
As parliament is democratically elected (voted on by the public) it allows the general public to have a say in the creation of laws through indirect democracy.
Parliament is bound by legal rules and conventions, and unwritten conventions of constitutional government.
Lawmaking by parliament upholds the rule of law by making sure the lawmaking process goes through a rigorous process to protect against the arbitrary abuse of power.
Why is representative government a strength of parliament-made law?
The requirement that members of parliament be democratically elected helps to hold them accountable through representative government (if they are not doing a good job, we can vote them out!).
Decision making is a shared responsibility.
Major and minor parties collaborate to ensure a number of perspectives are considered in the lawmaking process.
Members of parliament (esp. the government) are held accountable through regular elections.
The public decides who they want to make laws on their behalf, and whose electoral mandates they want to be fulfilled.
Why is sovereignty of parliament a strength of parliament-made law?
Parliament is the sovereign, or main lawmaker in Australia.
Parliament receives its authority from the Constitution and being voted in by the public.
In Australia parliament is not bound by previous Acts (they can repeal or amend these), or by the courts (with the exception of the High Court interpreting the Constitution in it’s original jurisdiction).
This allows it to make laws as it sees fit, and with the protection of parliamentary privilege.
The executives lawmaking powers comes directly from parliament.
This means parliament has the power to change the level of power enjoyed by the executive and the laws they can make.
Parliament can also create remedial and complementary legislation to alter case law if they consider that the laws created by the courts need changing to ensure just outcomes.
Why is responsible government and parliamentary review a strength of parliament-made law?
Australia has bicameral system (two houses of parliament).
All bills must pass through both houses of parliament before they can be passed.
While the executive chooses the legislative agenda, bills must be critiqued and debated by the opposition and independents and minor parties.
A strength of legislation is that it forces debate and criticism, as well as suggestions for improvement before a law is passed.
Multi-perspectives are considered during this process (unless the government has a majority in both houses of parliament).
Ministers are also held accountable for their departments, and legislation made under their portfolio during Question time.
Why is comprehensive lawmaking considered a strength of parliament-made law?
Parliament has both time and flexibility (as opposed to judges) who may need to develop law quickly to resolve a case before them.
This allows parliament time to research and consult widely before putting a bill before parliament.
Parliamentary or senate committees research potential laws before a bill is drafted to ensure it is informed and comprehensive.
This considered approach is important given that it is parliament’s role to set acceptable standards of behaviour for society.
Why is parliamentary privilege considered a strength of parliament-made law?
All members of parliament are covered by parliamentary privilege whilst debating in chambers
This is set out in Parliamentary Privilege Act 1987 (Cth)
Allows for honest and robust debate of the bill
Ensures all perspectives are considered without fear of being sued.
Does not cover MP’s when they are outside of parliamentary chambers
What are some weaknesses of parliamentary-made law?
Disenfranchisement of minorities
Time consuming and expensive
Conflict between responsible government and parliamentary review
Sensitivity to electoral backlash
Parliamentary privilege
Why is the disenfranchisement of minorities considered a weakness of parliamentary law?
Minorities are not always adequately represented in our system of government
Majority of elected officials are white men
There are few elected members from different cultural backgrounds
Few indigenous representatives
Only 35% of federal elected members are female
This lack of diversity can result in issues for minorities being ignored(voting rights for Indigenous people).
Given bicameral nature of parliament needs of minority groups can be overlooked.
Smaller parties can help to ensure minority groups are represented, however, unless they hold the balance of power they have minimal impact on public bills.
Why is the time consuming and expensive nature of parliament-made law considered a weakness?
Bicameral system means laws are heavily scrutinised.
Passing a bill can be a slow process, especially if committees are set up to investigate the issue.
This is also an expensive process.
Why is the conflict between responsible government and parliamentary review considered a weakness of parliamentary law?
Bicameral nature of parliament ensures bills are properly scrutinized. However, this is open to exploitation by the Opposition.
Even if government has a majority in the lower house bills can be repeatedly rejected by the upper house.
This creates a trigger for a double dissolution election.
This process also allows the opposition or minor parties to force significant changes to a bill.
Why is sensitivity to electoral backlash considered a weakness of parliamentary law?
Politicians can be slow to change laws- especially when an issue is controversial.
Politicians fear losing public support, and losing their seat at the next election
Sometimes this means that laws do not change until public attitudes have changed.
Plebiscite= (also known as an advisory referendum) is used to decide a national question that does not affect the Constitution. It can be used to test whether the government has enough public support to go ahead with a proposed action.
2017 Same sex marriage plebiscite
Used to test the feelings of the Australian public
61% of votes were in favor
Federal parliament held a conscience vote- legislation was passed December 2017
Cost- estimates $80.5 to $525 million
Why is parliamentary privilege considered a weakness of parliamentary law?
Allows all aspects of a bill to be debated- However, can be abused.
Parliamentarians can make unsubstantiated accusations in a public forum, without any recourse for people or groups involved.
2011- Nick Xenophon-former SA Senator made repeated allegations of sexual assault against a man in Adelaide. These were made under parliamentary privilege therefore Xenophon could not be sued for defamation. When the media reported on these allegations they were also protected.
2016-Senator Derryn Hinch used parliamentary privilege to name sex offenders whose names had been suppressed by the courts.
What are some strengths of delegated legislation?
Quicker and cheaper than creating legislation (as there are fewer checks and balances)
Often developed by experts in the particular field (this means its specific and tailored)
Speed it can respond to emergency situations (COVID-19 19 regulations)
