Topic 2 - Formative Test - Legislation Flashcards
Explain the Doctrine of the Division of Powers, including the Inconsistency Rule.
Refers to the legislative power sharing arrangements between the Federal and State parliaments, outlined in the Australian Constitution. S109 – the inconsistency rule, where State and Commonwealth clash.
Provide an example of the Inconsistency Rule working in practice.
1961 States had made laws about marriage, but then federal did it too, rendering the state law invalid.
What is the one exception to Parliament prevailing over the other 2 arms.
Federal parliament cannot overrule a High Court interpretation of the Constitution.
Explain the factors that lead to the initiation of legislation using the headings below:
- Political Party Policies
Set of beliefs each party wish to pursue, and the people of Australia give their support to those parties. The range of votes reflect the different ideas and are essential to functionally govern the nation. - Electoral Mandate
The promises that political parties make to the people as they run for a campaign. A win is viewed as a mandate for the promised change. - Court Decisions
Amending a law for the future if parliament don’t like a way the court has interpreted it (remedial legislation) or favour a decision so much they decide to create a piece of into legislation (known as complementary legislation). - Parliamentary Committees
Parliaments create committees to investigate areas of government performance. Some may have members from both houses, while others will be limited to one. The committees investigate issues, hear from stakeholders, and compel people to testify (plus allow for public consultation). - Executive Committees
Created by the government in order to investigate a specific area of interest. Membership comprised of experts, rather than MP’s. Report to government, who decide whether their report should go public or not. - Pressure Groups
A group of people together to lobby for a change in the law.
Define and provide examples for Remedial and Complementary Legislation.
Remedial – Youth sentenced as adults’ case, where a judge made a decision using the law, and there was outrage, so the law was changed.
Complementary – Native Title Act – High Court introduced a new principle when creating a native title in Australia, the parliament wrote the Act to provide context and guidance to the court decision.
Provide examples of Pressure Groups.
- Workers union
- Greenpeace
- Registered religions
What is a bill?
.
A proposal for a new Act of Parliament. Can be categorised according to their content, or the person responsible for their introduction.
Distinguish between Public Bills and Private Members Bills.
Public Bills – introduced by a Minister in the Government. Most common types introduced into parliament for two reasons – government generally has a majority in the lower house of parliament, and most ministers are drawn from lower house.
Private Members Bills – Proposed by anyone else (or a minister not acting in their role), less frequent and less likely to be successful, as they are without the support of government in the lower house. These types usually address controversial issues, or social and moral issues.
List the most common types of Bill.
Public Bills
Why are most Bills introduced into the Lower House of Parliament?
As this is where majority of the ministers sit, and public bills (the most common) need to be introduced by the relevant minister.
Using the headings below, dot point the 3 stages of a bill passing through Parliament.
a. Pre-Parliamentary Stage
- First must be developed.
- Once a party has an idea, they need it to be drafted.
- Details of the proposed bill are sent to the Office of Parliamentary Counsel to be drafted.
- Once drafted, it is sent back to the Cabinet for approval, before introduced into parliament.
b. Parliamentary Stage
i. Giving Notice
The relevant minister gives notice to the Clerk of the House of Representatives, stating they wish to introduce that bill.
ii. First Reading
The Clerk announces the notice, and the Minister reads the long title and a short description of it. Minister then gives the Clerk a copy of the notice, and the memo is available to all other members of the House, and to the public.
iii. Second Reading
Follows the first reading immediately, the same minister gives another speech in favour of their new bill, to encourage their colleagues to pass it through their house.
Adjourned here, the Opposition will think about how they will respond, then after some time has passed, the bill appears to undertake the Second Reading debate. The debate between the shadow minister and the one presenting the bill, then members will speak in turn to contribute to the debate, then a vote goes ahead, and if it passes (50% + 1 – for the senate and the House of Representatives). An affirmative vote means that the bill is now the business of the House.
iv. Consideration in Detail – still apart of the second reading.
Consideration of the bill in great detail, and amendments may be added, which will need to be passed by the House again. This entire stage may be skipped if the entire House agrees that the bill does not need to be examined. Then it will go straight to the Third reading stage, at each stage, a vote is taken.
v. Third Reading
Mainly a formality – rarely a debate. The clerk reads out the long title of the bill, and the House usually votes on the voices.
vi. Transmission to the House of Review
Bill is sent to the other house for review, for example, once it passes the House of Representatives, then goes to the senate.
vii. Reviewing House
The minister who originally introduced the bill sits in lower house so they cannot be present to guide it through upper house – so they find someone from their party to take over the bill to assist its passage through upper house. Committee of the whole, same as Consideration in detail but for the senate.
viii. Royal Assent*
Governor General passes the bill for it to become an act. Formal approval from the monarch for a law.
c. Post-Parliament Stage
After royal assent, moves to the proclamation stage
Returned to the relevant minister who will tell the Governor General when to proclaim the act
Not officially an act until proclaimed in the Government Gazette.
Briefly explain the difference between voting “on the voices” and a “division”?
An ‘On-the-voices’ vote will occur when the Speaker or President say 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 decide about which side has received the most votes. 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.
Distinguish between a deadlock and a disagreement in Federal Parliament.
A deadlock describes a situation, where a bill is passed in the House of Representatives twice, but rejected by the Senate, twice, with at least a three-month gap between attempts. This must occur within the same term of parliament. A disagreement occurs when the Senate obstructs the passage of a bill, but the deadlock requirements of s57 in the Australian constitution have not been met.
How is a disagreement resolved?
Compromise or abandonment.
Has the double dissolution mechanism been successful? Why or Why not?
Seven double dissolutions. 1951, 1974, 1975, 1983, 1987, and 2016. Largely, they have not proven to be very effective at resolving deadlocks. In 1914, 1975 & 1983, the Governments lost the election, and their bills lapsed. The successful passage of bills that triggered these elections were only achieved in 1951 and 1974.
