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Legal Studies > Legislation > Flashcards

Legislation Flashcards

1
Q

Why do we need laws?

A

For society to function harmoniously and to protect people’s rights.
Provide boundaries for acceptable standards of behaviour.
Set consequences for unacceptable behaviour.
Achieve harmony now and in the future.

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2
Q

Who sets acceptable standards of behaviour?

A

Law-making institutions.

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3
Q

What are acceptable standards of behaviour based on?

A

Society’s values, backgrounds and beliefs.

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4
Q

Why does each branch of government make laws in different ways?

A

To address the various needs of society.

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5
Q

What is the legislature?

A

Parliament.
The sovereign lawmaker
Makes laws (known as legislation, acts or statutes.)

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6
Q

What is the executive?

A

Cabinet ministers and government departments

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7
Q

What is the judiciary?

A

Judges and court
Makes laws (known as case law or common law)

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8
Q

Where are the powers of each institution set out?

A

Australian constitution

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9
Q

What is the division of powers?

A

The way legislative powers are shared between the three tiers of government.
Federal parliament, state/territory parliaments, local councils.

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10
Q

What are the categories of powers within the Constitution?

A

Specific powers, concurrent powers and residual powers

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11
Q

What are the 3 different sources of law in Australia?

A

Parliament, delegated authorities and courts.

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12
Q

What types of laws does parliament make?

A

Bills, legislation, statute law, act of parliament

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13
Q

What types of laws do delegated authorities make?

A

Delegated legislation, local laws, bylaws, regulations

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14
Q

What types of laws do courts make?

A

Common law, judge-made law, case law, precedent

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15
Q

What happens if there is a conflict between legislation, delegated legislation or common law?

A

The law will prevail.

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16
Q

Who initiates laws?

A

Political party policies, election mandate, court decisions (remedial or complementary legislation), investigative committees, parliamentary committees & executive committees, pressure groups.

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17
Q

What is a bill?

A

A proposed law, presented to parliament to debate and enact.

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18
Q

What is an act?

A

A bill that has been passed through both houses of parliament (upper and lower). An act must pass through both houses in the same form to be passed.

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19
Q

What are the two categories of bills?

A

Public bills and private members bills. Categorised based on who introduces the bill.

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20
Q

What is a public bill?

A

Bill introduced by government (normally a cabinet minister). Have to originate in the lower house, and cannot be changed by the upper house.

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21
Q

What are the two types of public bills?

A

Ordinary bills which don’t involve tax or spending and supply bills which create a tax or authorise spending

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22
Q

What is a private members bill?

A

A bill introduced to parliament by an individual.

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23
Q

What are the types of bills?

A

Original bill, amending bill, repealing bill, consolidating bill, constitutional alteration bill, supply/money bills.

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24
Q

What is an original bill?

A

A bill that proposed a law that is brand new

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25
Q

What is an amending bill?

A

A bill to change an existing law (normally has ‘amendment’ in the title)

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26
Q

What is a repealing bill?

A

removes or replaces an existing law

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27
Q

What is a consolidating bill?

A

Joins several pieces of legislation together into one act (‘consolidating’ is normally included in the title)

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28
Q

What is a constitutional alteration bill?

A

A bill proposing changes to the wording of the Australian constitution.

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29
Q

What is a supply/money bill?

A

Authorise government spending and taxation. (Can only be introduced in the lower house, and can’t be amended by the upper house - only accepted or rejected)

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30
Q

What are the 3 stages of law-making in parliament?

A

Pre-parliamentary stage, parliamentary stage, post-parliamentary stage.

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31
Q

What are the steps in the pre-parliamentary stage?

A

A party develops an idea for a bill.
Details of the proposed bill are sent to the Office of Parliamentary Counsel to be drafted.
It is then sent back to the Cabinet for approval before it is introduced to parliament.

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32
Q

Why are bills drafted by the Office of Parliamentary Counsel?

A

To ensure the bills are written correctly by experts in legislative drafting.

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33
Q

What are the steps in the original House of the parliamentary stage?

A

Giving notice, first reading, second reading, second reading debate, voting, consideration in detail, third reading stage, transmission to the house of review.

34
Q

What is giving notice?

A

The minster responsible for a bill gives a notice to the Clerk of the House of Representatives stating they wish to introduce a bill into the House. The clerk will then place the bill on the Notice Paper for introduction, usually with other proposed bills.

35
Q

What is the First Reading?

A

The Clerk will announce the notice and the minister responsible for the bill will stand, and read aloud the short title for the bill. The minister hands the Clerk a signed copy of the bill, and an explanatory memo (which explains the purpose of the bill) having moved they have leave to introduce the bill. The Clerk will then read the long title of the bill to the House and then make the bill, and the memo available to all other members of the House. At this stage, this information is made available to the public.

36
Q

What is the Second Reading?

A

This stage often immediately follows the First Reading. After the bill and memo are made available to the House, the speaker calls the minister responsible for the bill, who moves the bill to be read a second time. They provide a speech in favour of their bill or table a memo, or both. This is designed to encourage their colleagues to pass it through the House.

There is typically an adjournment here, to allow all members of the House of Representatives to go away, read the information, and consider it. The Opposition will take this time to consider how they will respond as a party to this proposal.

37
Q

What is the Second Reading Debate?

A

After some time has passed, the bill will reappear on the schedule to undertake the Second Reading Debate. This is the stage where the most comprehensive debate and discussion of all elements and principles occurs. The Shadow Minister for the Opposition will often present the Opposition’s perspective. After this, members will speak in turn to contribute to the debate. This stage of debate has no time limit. At the end of this stage, a vote will be taken to see if the House has agreed to the bill in principle. An affirmative vote means this stage is complete. Once approved, the bill becomes the business of the House.

38
Q

What are the two primary ways in which voting occurs in the parliament?

A

On-the-voices and division

39
Q

What is an on-the-voices vote?

A

This is the most common way for a vote to take place. An ‘On-the-voices’ vote will occur when the Speaker or President says to the House, “All those in favour of the bill say “Aye”, and all those against say “No””. The presiding officer who has called the vote will then make a determination about which side has received the most votes, and will inform the House about whether the motion has passed. As a matter of course, they usually say “The ayes have it”.

40
Q

What is a division vote?

A

A division is a formal vote, where the names and record of the vote are officially recorded into Hansard. A division is called when the ‘On-the-voices’ result is challenged by MPs.
When a division is called (usually by a member of the Opposition), a timer begins and bells are rung throughout Parliament House to call MPs back to their chamber for the vote. When the timer runs out, the doors are locked, and the vote will only be taken from the people in the House.
At this point, the House will divide to vote. The ‘Ayes’ are directed to move to the right of the Chair, and the ‘No’s’ to the left. The Clerks will then instruct the parliamentary whips to count and record the votes. The result will then be read to the House by the Presiding Officer, who records the result to the House.

41
Q

What are the two principal ways in which a politician can cast their vote?

A

Along party lines and a conscience vote.

42
Q

What is a vote along party lines?

A

This simply means that a politician will vote on a bill the way that their party leader has instructed. Members of the government will vote in favour of government bills. A vote against their own party could potentially put their position in the party in jeopardy and result in disciplinary action. This act of voting differently to your party is referred to as ‘crossing the floor’.

43
Q

What is a conscience vote?

A

A conscience vote allows MPs to vote along their own personal beliefs, rather than being told how to vote by their party leader. Members may choose to vote in accordance with their own beliefs or may choose to vote along the lines of what their constituents want. Conscience votes are usually reserved for controversial issues, or matters that are morally or ethically difficult.

44
Q

What is an example of the use of a conscience vote?

A

The 2016 bill to introduce euthanasia laws in South Australia.

45
Q

Why is it important that MPs are available for divisions?

A

Its importance was made apparent to the public in 2016, when, for the first time in 50 years, the (Turnbull Liberal) Government lost a vote in the House of Representatives as three of their colleagues were locked out. One had left parliament early, and was half-way home!

46
Q

What is Consideration in Detail?

A

The purpose of this stage is to consider the bill in great detail. Each clause of the bill is examined individually, and members of the Opposition and cross-bench may suggest changes and amendments. The debating and speaking procedures in this stage are less formal.
When an amendment is proposed, the Chair will hold a vote to see if the amendment passes, and, if it does, how it will be added into the bill. This process repeats until the entire bill has been considered.

47
Q

When can the Consideration in Detail stage be skipped?

A

If the House agrees that the bill does not need to be examined in detail. If no one objects to skipping the Consideration in Detail stage, then the bill will go straight from the Second Reading to the Third Reading Stage.

48
Q

What happens at each stage of the parliamentary process?

A

At each stage, a vote is taken.

49
Q

What is the Third Reading Stage?

A

This is the final stage in the House of Representatives, and is undertaken as a formality. Debate at this stage is rare. The Clerk will read out the long title of the bill and the House votes, with a result taken, ‘on the voices’.

50
Q

What is the Transmission to the House of Review?

A

After the bill has passed the first House, it is then sent to the second House for review. The Clerk will place the bill in a special folder, for delivery to the Senate by the Sergeant-at-Arms. The Speaker encloses a message with the bill asking the Senate to consider the bill.

51
Q

Who helps guide the bill through the second house?

A

The responsible minister will find another minister from their party to ‘take over’ the bill in essence, to ensure a member of the government assists the passage of the bill passed through the senate.

52
Q

What debating stages occur in the Reviewing House?

A

The debating stages are essentially the same as the original House:
- First reading
- Second reading
- Committee of the Whole
- Third Reading

53
Q

Why is a second reading speech not given in the reviewing House?

A

A second reading speech is not given in the reviewing House, as senators can read the original speech from Hansard.

54
Q

What is the main difference in the reviewing House?

A

The Committee of the Whole stage. Many bills, particularly controversial ones, can be referred to select, standing or reference committees to consider the bill in more detail. these committees are made up from members from both major parties, and members of the cross-bench. these committees will ask stakeholders, experts, and members of the community to answer questions, or provide information about the proposed bill. When the committee has completed its review, it will submit a report to the Senate for it to consider.

55
Q

What happens if a bill fails to pass in the review House?

A

The bill is returned with the suggested amendments to the original House, to allow for debate and the adoption of changes.

56
Q

What happens if the original House fails to agree on amendments proposed by the review House?

A

Then the bill has failed, and may be abandoned or shelved.

57
Q

What happens if the original House agrees on amendments proposed by the review House?

A

The law will pass having now passed through both Houses in the same form.

58
Q

What happens once the bill has passed both Houses?

A

The Governor-General will assent the bill to become an Act of Parliament on the advice of the presiding officer of the originating House. This is accompanied by a certificate from the Solicitor-General who confirms that the bill is a valid exercise of Commonwealth Power.

59
Q

What happens after a bill is assented?

A

The assent is then published in the Government Gazette and may include a proclamation and commencement date.

60
Q

Can the Governor-General refuse assent?

A

Although extremely rare, the Governor-General can refuse assent.

61
Q

What is the Post-Parliament Stage?

A

After the bill has been assented by the Governor-General, it moves onto the proclamation stage. After assent, the bill will be returned to the relevant Minister, who will then tell the Governor-General when to proclaim the Act.

62
Q

The bill is not officially an act until…

A

Until it is proclaimed in the Government Gazette. This is how the government officially notifies the public the law has changed.

63
Q

How can an act come into force at the Commonwealth level?

A
  • Its date of assent
  • A date that was prescribed (written into) the Act
  • A date of proclamation set by the Governor-General
64
Q

What is one key difference with passing bills in the Northern Territory?

A

One key difference with the Northern Territory parliament is that it is unicameral, meaning bills need to only pass one House in order to become law.

65
Q

What happens if the two houses of Parliament can’t agree on a bill?

A

there are several names for the situation when the House continues to pass a bill but the House of Review continually rejects it. This includes Parliamentary Deadlock and Disagreement.

66
Q

What is a Parliamentary Deadlock?

A

When a bill is passed twice by the House of Reps, but rejected both times by the Senate, with a least 3 months gap between attempts (must occur in the same parliamentary term).

67
Q

What section of the Constitution sets out how deadlocks can be resolved?

A

Section 57 of the Constitution. Only applies to bills introduced in the House of Reps.

68
Q

What is a disagreement?

A

When the Senate obstructs the passage of a bill, but requirements of section 57 are not met.

69
Q

How are disagreements resolved in Federal Parliament?

A

Compromise or abandonment.

70
Q

How are deadlocks resolved in Federal Parliament?

A

If the government does not want to abandon the bill and a compromise can’t be reached, Setion 57 states that a deadlock can be resolved via a double dissolution.

71
Q

How many stages are there of double dissolution?

A

4

72
Q

What is the first stage of double dissolution?

A
  • House of Reps passes a bill
  • Senate rejects bill, fails to pass it, or makes amendments the House of Reps won’t agree to
  • at least 3 months passes - bill re-introduced to the House of Reps and passed
  • Senate again rejects, fails to pass it, or makes amendments the House of Reps won’t agree to
  • Requirements for deadlock have been met. This is known as a ‘Constitutional trigger’ for a double dissolution
  • Prime Minister can now seek a double dissolution election.
    *This can’t happen within 6 months of the date of their term
73
Q

What is Stage 2 of Double Dissolution?

A
  • Prime Minister advised Governor-General to dissolve both houses of Parliament and call an election
  • A double dissolution election is different to a normal election as all seats in both Houses are up for re-election. In a normal election, all of the House of Representatives and 1/2 of the Senate are up for re-election.
  • If government is defeated at the election, the bill lapses and will not be re-introduced
  • If government is re-elected, they move to Stage 3
74
Q

What is Stage 3 of Double Dissolution?

A

House of Reps passes the same bill without amendments.
Senate rejects, or fails to pass the bill, or makes amendments the House won’t accept.

75
Q

What is Stage 4 of Double Dissolution?

A
  • Prime Minister asks the Governor-General to call for a joint sitting of Parliament
  • Elected members of both the House of Reps and the Senate join together and hold a final vote. If the bill receives a majority of votes, it is assented to and proclaimed so it can become law.
76
Q

How are disputes and deadlocks resolved in South Australia?

A

Abandonment, Manager’s Conference, Double Dissolution (not really)

77
Q

What is abandonment (SA)?

A

If the Lower House cannot get a bill through, they can abandon the idea and try again later.

78
Q

What is a manager’s conference (SA)?

A

Conference where 5 members of each house (Managers) meet outside of Parliament and discuss the disagreement or deadlock. These informal meetings are often successful in negotiating a compromise. A conference of managers must occur if bill has been passed by the Lower House and refused by the Upper House. This normally results in a compromise by the Government or the bill being abandoned.

79
Q

What is a Double Dissolution (SA)?

A

South Australia can only use double dissolutions for ‘bills of special importance’. There has yet to be a double dissolution election in SA.

80
Q

What are some strengths of legislation?

A

Made by representative government - democratic
Comprehensive law-making process
Can delegate law-making power
Sets acceptable standards of behaviour for society.

81
Q

What are some weaknesses of legislation?

A
  • Not everyone in society is represented
  • Time consuming
  • Undemocratic when delegating responsibilities
    Inconsistencies in laws between the Commonwealth and different states.

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