Australian Parliamentary System Case Study
Area of Study 1
The Principles of the Australian Parliamentary System
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Representative Government refers to a government that characterises the views of the majority of people. The Government consists of representatives of the people who are chosen by the public.
-Regular Elections
-If government does not represent the needs of the majority of people it is likely to be voted out of office at the next election.
TIP-Do not use a circular definition. Ie. Do NOT say "representative government refers to a government that represents the views of the majority of the people". This definition will not get you full marks. (or should not if …show more content…
your teacher marks according to VCAA standards.)
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Responsible Government refers to the government’s accountability to the voters.
-Government is answerable to the people for its actions.
- Ministers are responsible to parliament and therefore the people
(Ministerial accountability)
- Ministers are responsible to parliament for the actions of their department
- Members of Parliament may question ministers about their and their department’s activities.
- Ministers must act with integrity or resign.
If government loses support of lower house it MUST resign. Hence, Government is responsible to parliament. Parliament is responsible to the people.
TIP-Make sure to not only say that government is accountable to the voters but how government is responsible to parliament and parliament is responsible to the public. Hence the link
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The Principle of separation of powers refers to the fact that there are three separate types of powers in our parliamentary system.
• Legislative power- The power to make laws, resides with parliament.
• Executive power- The power to administer the laws and manage the business of government. Accountable to the legislative arm of government. Under the Constitution this power is given to the executive (governor- general) but in practice it is carried out by government.
• Judicial power-The power to enforce the law and settle disputes given to the courts. Must be kept separate and independent from legislative and executive powers.
Example of separation of powers: Criminal Law- Creation of a new criminal offence is a legislative power (act of parliament), the enforcement of the law is and executive power (police) and when an offender is brought before a court for trial this is a judicial function.
Under the principle of separation of powers, the three powers are separate that any one body which administers one power may not take over the power of another body that administers another power.
Separate nature of judicial power- Not to be combined with other powers. Safeguards citizens from the misuse of political power of corruption in the resolution of disputes. (People who make the law aren't enforcing it. - Conflict of interest)
Reasons for the separation of powers:
• Provides the stability of government and freedom of people
• Provides independence between the bodies that make the law and the bodies that enforce the law
• Provides a check on the power of parliament to ensure that it does not go outside its area of power
TIP-Executive power will be the one that screws you up if anything. It is given to the gov-gen but in practise the government administers the executive powers.
Make sure to explain why their is a separation of powers and what is limits. (Absolute power= corruption)
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Structure of State and Commonwealth Parliaments
-One central government; The Commonwealth Parliament
-Many State Parliaments
The bicameral system means two houses, an upper house and a lower house. Queensland and the territories only have one house.
TIP- Bicameral also includes the Queens representative.
TIP- Upper house and Lower house at each level have similar functions. Senate has one main differences between Legislative Council, it acts as a State's house to ensure State's interests are maintained through equal representation.
The role of the Crown is to:
• Appoint a federal executive council to give advice about the government, establish departments of government and appoint ministers to administer them.
• Designate parliamentary session times
• Bring session of parliament to an end
• Dissolve the House of Representatives to bring about an election
• Give or withhold royal assent
• Make delegated legislation as part of the executive council
• Appoint judges to courts The role of the Houses of Parliament is to:
• Make laws on behalf of the people for the good government of society
• Provide for the formation of government
• Provide a forum for popular representation
• Scrutinise the actions of government
• Delegate some of its law making power to subordinate authorities
• Balance the books- what revenue is required and how it is to be spent.
TIP-Knowledge of 2-3 of EACH of these will suffice
Commonwealth Parliament Queens rep (Crown): Governor General Upper house: Senate. Lower house: House of Representatives
The House of Representatives
• Initiates laws- this is the main function of the House of Representatives
• Determines the government – political party with majority in House of Representatives forms government and leader becomes prime minister
• Scrutinsers government administration
• Controls government expenditure- the government cannot spend money or raise taxes without the necessary acts of parliament being passed
• Representing the people- citizens may present petitions to parliament and raise matters of concern
TIP- Two- Three will suffice
Additional Information
• People's house
• 150 Members-each member represents an electoral devision
• Terms of office: 3 years
The Senate
• Main role is to make laws (money bills cannot be initiated in Senate)
At the time of federation the Senate had 2 main roles
• States’ house- States (especially smaller ones) were afraid that they would give up too much power to the Commonwealth at the time of federation so therefore S7 of the Constitution states that each state, regardless of size or population, will have equal representation.
• House of review- Majority of bills are initiated in the lower house and the Senate has the task of reviewing the bills already passed in the lower house.
Additional Information
• 76 Senators
• Each state has 12 representatives
• Two representatives per territory
• Senators are elected for a period of 6 years. Half of the senators are elected every 3 years.
Effectiveness of the Senate
Senators tend to vote according to the dictates of their party. This means that the Senate does not fulfil its role as a states’ house or a house of review. If the government has a majority in the Senate it tends to be a ‘rubber stamp’ on decisions made in the lower house.
TIP- Think about the differences between theoretical and practical roles of each house
Victorian Parliament Queens rep (Crown): Governor Upper house: Legislative Council Lower House: Legislative Assembly
Legislative Assembly
The role:
• House of government. Majority party earns government
• Main role is to make laws. Most bills initiated in Legislative Assembly.
Additional Information
• 88 districts
• One member per district
• 4 year fixed term. Elections held on last Saturday in November every 4 years.
Legislative Council
• Role: House or review
Additional Information
• 8 regions
• Each region consists of 11 districts
• 5 members of the Legislative Council will be elected for each region
• Total of 40 MLCs
Going Further-Double Dissolutions The governor-general has the power to dissolve both the House of Representatives and the Senate at the same time- a double dissolution. This happens when the Senate rejects a bill passed through the House of Representatives and then the House of Reps. passes the bill again and the Senate rejects it again. This rarely happens.
Definitions
The government is the party with the majority of members in the lower house of parliament.
Cabinet consists of the prime minister and senior ministers. It’s role is to decide on general government policy and to formulate proposed laws (bills) to be introduced to parliament.
Parliament is the law making body consisting of all members of both houses from all political parties.
Area of Study 2
Changing the Law
The main aim of the law is to protect our society and keep it functioning. The law also aims to protect individual rights and to stop behaviour that will ultimately affect the peace and good order of society. Laws also need to be able to outline acceptable behaviour and prevent conflict within society.
Key Knowledge
• The reasons why laws may need to change
• The role of the Victorian Law Reform Commission
• The means by which individuals and groups influence change, including petitions, demonstrations and use of the media
• The legislative process for the progress of a bill through parliament
• Strengths and weaknesses of parliament as a law-making body
Key Terms
• Formal Pressure – Pressure for change in the law arising from the formal structures of government and parliament
• Informal Pressure – Pressure for change in the law arising from outside the formal structures of government and parliament
• Lobby – To attempt to influence the passage of legislation of government policies
• Pressure Group – A group of people who have common interest in trying to influence changes in the law
• Victorian Law Reform Commission (VLRC) – A permanent body established by the Victorian Parliament specifically to investigate the need for change in the law
• Demonstration – A public exhibition of sympathy or support for a particular issue; a mass meeting
• Terms of Reference – Instructions given to an organisation (for example, a law reform body) setting out the parameters within which an investigation will operate
• Subordinate Authorities – Bodies to whom parliament delegates law-making powers
• Abrogate – Abolish; law made through courts can be cancelled by an act of parliament if the act specifically states that it abolishes the law made by the courts
• Bill – Proposed law
• Cabinet – The policy-making body of the government, made up of senior ministers and the prime minister (federal) or premier (state)
• Delegated Legislation – Rules and regulations made by subordinate authorities
• Legislation – An act of parliament or set of acts
• Office of Parliamentary Counsel – The office of parliamentary counsel is responsible for drafting legislation; the drafters are given instructions from cabinet about the purpose and extent of proposed laws
• Scrutiny of Acts and Regulations Committee – A Victorian joint investigatory committee that looks at new bills as they make their passage through the Victorian Parliament
• Senate Scrutiny of Bills Committee - A senate committee that is responsible for examining all bills that come before the Commonwealth Parliament
Changing Laws
Reasons for change
Laws need to change to reflect the needs and values of the community
• Changing values in society
• Changes in society
• Technological …show more content…
advances
• Protection of society
• Greater protection of individual rights
• Political changes
• Greater demand for access to the law
Reason for change Example of change in the law
Changing Values - Relationships Act 2008 (Vic.)
- Proposal for same-sex marriages
- Domestic Animals Amendment (Puppy Farm Enforcement and Other Matters) Act 2011 (Vic.)
Changes in Society - Competition and Consumer Act 2010 (Cth)
- Justice Legislation Amendment Act 2011 (Vic.)
- Liquor Control Reform Amendment Act 2010 (Vic.)
- Crimes Amendment (Bullying) Act 2011 (Vic.)
Advances in technology - Crimes Amendment (Identity Crime) Act 2009 (Vic.)
- Assisted Reproductive Treatment Act 2008 (Vic.)
- Suggestions to change surveillance laws
Protection of the community - Regulations relating to mobile phone use
- Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 (Vic.)
- Crimes Legislation Amendment (Food and Drink Spiking) Act 2009 (Vic.)
Protection of rights - Equal Opportunity Act 2010 (Vic.)
- Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Access to the law - Victorian Civil and Administrative Tribunal Act 1998 (Vic.)
- Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010 (Vic.)
- Neighbourhood Justice Centres
Generating changing values in society - Shop Trading Reform Amendment (Easter Sunday) Act 2011 (Vic.)
- Equal Opportunity Act 2010 (Vic.)
Influences for change
Most law reform is initiated through parliamentary ministers, who take advice from their department and law reform bodies (regarding how to change the law).
• Informal: Participants - (individuals, groups)
• Informal: Methods – Petitions, demonstration, media, court precedent
• Formal: Victorian Law Reform– Abortion Commission, Cabinet, Government Departments
Effective Laws
• Reasonable, able to be enforced, consistent, reflect community values, must be known by the community, able to be changed, easily enforced
Strengths and Weaknesses of Parliament as a law making body
The primary role of parliament is to make laws on behalf of the community, although this is hindered by the fact that parliament is not always sitting. The role of courts is to interpret the law made by parliament and resolve cases that come before the courts. In this process courts sometimes also create precedents that form part of the law to be followed in the future.
Strengths Feature Weakness
• More flexible and efficient law making
• Parliament allows law-making to be directly responsive to local needs. Delegating Law making power: Ability to delegate legislation to different bodies • Does not adequately supervise delegated legislation.
• Lessons the extent to which parliament can be the prime source of law.
• Legislation reflects the majority of people
• Allows for feedback to laws Democratically Elected: Parliament is elected by the people • Parliament may be reluctant to pass controversial laws as they may be voted out in the next election
• They become subject to political pressures
• Parliament can organise committees, working parties and special bodies to prepare recommendation for appropriate action
• Has the resources and expertise to make laws
• Capable of undertaking comprehensive law reform The ability to make/change laws • Parliament often does not meet enough to make regular changes to laws. Sits generally 40-70 days per year.
• Laws cannot be changed when parliament are not sitting.
• Members of society are able to know what the law is and how it applies to them in abundance Making law Futuro • Parliament may not always be able to foresee future circumstances when drafting laws.
• Allows debate and members to be informed.
• Members of parliament can inform public and public can follow debate.
• Laws have been fully considered and represent the views of the people. Debate Arena • Members don’t often represent the entire community.
• Members vote along party lines
• If majority holds power in Lower and Upper House it is less effective.
Methods of Change
Informal means Courts (precedent), pressure groups, individuals, lobby groups, media, and political parties
Informal Pressure comes from individuals or groups who are not connected with the law-making process and cannot be instrumental in changing the law, but who can try to influence the law-makers to change the law. Informal pressures can increase public awareness of a problem and encourage parliament to investigate an issue. Informal pressure may come from such sources:
• Individuals
• Political Parties
• Pressure Groups
• Trade Unions
Formal means VLRC and other law reform bodies, MP’s, Cabinet, Government Departments, Parliamentary Committees and statutory bodies (e.g. VicRoads, SEC, local councils)
Formal Pressures for changes in the law come from within the formal structures of the law-making process and include:
• Cabinet, which is responsible for deciding what changes in the law should take place
• Government Departments, which decide what changes in the law are required in their area
• Parliamentary Committees, which are asked by parliament to investigate an issue
• Law Reform Bodies, which are responsible for investigating the need for changes in the law as needs arise
Other methods of influencing changes in the law include:
• Defiance of the Law – occurs when someone feels strongly enough to break the law, despite the risk of being punished, in attempt to show the general public and the law-makers that injustices are occurring because of an out-dated law. The method of trying to influence the law-makers is often not successful as the lawmakers do not want to be seen as giving in to people who defy the law. However, if the suggested change in the law has sufficient community support, this can lead to changes occurring. For example, shopkeepers opening their stores during restricted hours has led to almost unrestricted shopping hours.
• Lobbying – Professional lobbyists in Canberra are employed by individuals or groups to lobby members of parliament, particularly cabinet ministers. They are often former politicians who have made many important contacts in parliament. It is also possible for individuals or groups to lobby members of parliament personally to try to influence a change in the law.
• Submissions to Law Reform Bodies – Individuals and groups can influence changes in the law by making suggestions to formal law reform bodies during their investigative processes. People are encouraged to make submissions to current inquiries being undertaken by law reform bodies, such as the Victorian Law Reform Commission (VLRC)
• Courts – Courts can play a role in influencing changes in the law. Courts are able to change the law, although they are limited in this role as they can only do so when a case comes before them and only in relation to the issues in the case. Individuals can be instrumental in bringing about a change in the law by taking a matter to court and pursuing it so that a point of law is clarified or established. Judges in court cases can make suggestions that a law needs to be changed. Public outrage following the findings of a court case can lead to a change in the law. For example, the Child Amendment (Child Homicide) Act 2008 (Vic.) was prompted by public outrage about the light sentences given in two high-profile cases of child killing.
• Private Member’s Bills – Most legislation is introduced into parliament by a representative of the government and has the backing of the government. Any member of parliament can, however, introduce a bill into parliament. It usually has little chance of success because it does not have government support and therefore lacks the numbers to vote for it to pass through the house. If the bill arouses public concern, it may be taken up by the government and passed through parliament. An example is the Environment Protection Amendment (Beverage Container Deposit and Recovery Scheme) Bill 2009 (Vic.), which aims to introduce a beverage container deposit and recovery scheme.
Reasons for Change
• Changing values in society
As our values and attitude change, the law (to remain acceptable to the individual in society) must change to keep up with these changing values.
For example, surrogacy arrangement – Assisted Reproductive Treatment Act 2008 – makes provision for altruistic surrogacy arrangement • Changes in society
Society is constantly changing and the laws need to keep pace with this
For example, Summary Offences and Control of Weapons Act Amendment Act 2009 (Vic) has been passed in an attempt to tackle the rising incidence of youths carrying knives - the new law includes on the spot fines for people caught carrying illegal weapons/knives on the streets
• Advances in Technology
Changes in technology necessitate constant changes in the law as new areas of offences develop. Technological advances can create new activities (e.g. internet surfing) in which people can commit crime or can assist in harming the society if used in a negative manner.
As this happens there is often a need to regulate the actions of some individuals and groups in order to protect the rights of others
For example, Internet stalking due to openness of internet and lack of privacy, identity theft (so the Crimes Amendment Identity Crime Act 2009 (Vic) was passed), controversial use of human embryos
• Greater need for protection of the community
At times the laws need to adopt a paternalistic approach to the protection of the community – laws are passed because individuals do not protect themselves, e.g. seatbelts, bike helmets, anti-hoon laws. The community also needs to be protected so that it can function in a harmonious way. One of the major roles of the law is to protect people from harm so laws are required to make certain actions (actions that harm others) unlawful.
For example: In 2009 the use of mobile phones whilst driving was prohibited, Child Amendment (Homicide Act 2008) increased the penalty for killing a child
Victorian Law Reform Commission (VLRC)
The Victorian Law Reform Commission (VLRC) came into operation on the 6th of April 2001. It is an independent, government-funded organisation. It was established to investigate areas of law in which the government feels there is a need for law reform and to monitor and coordinate law reform activity in Victoria. Some of the topics of inquires carried out by the VLRC include abortion, jury directions, surveillance in public places and sex offenders registration.
The role of the Victorian Law Reform Commission
The main role of the Victorian Law Reform Commission is to undertake research and make recommendations for changes in the law on issues that are referred to the VLRC by the state attorney-general. This is called a reference. The VLRC also has the power to recommend minor changes to the law without a reference from the attorney-general.
The VLRC can do the following things:
- It can make recommendations for law reform on matters referred to it by the attorney-general. This includes conducting research, consulting with the community and reporting on law reform projects.
- The VLRC can make recommendations on minor legal issues of general community concern. It can recommend changes in the law relating to minor issues that have not been referred by the attorney-general, but have been brought to the VLRC’s notice by members of the public.
- It can suggest to the attorney-general that he or she refer a law in need of investigation to the VLRC. After consultation with various groups, the VLRC may suggest new references relating to area where change in the law would be desirable.
- It can educate the community on areas of law relevant to the VLRC’s work. The VLRC works with groups in the community to ensure that changes in the law are effective. It also provides relevant information on what the law is.
- The VLRC can monitor and coordinate law reform activity in Victoria. It works with other law reform bodies to ensure effective law reform in Victoria
Process of the VLRC
In assessing the need for change in the law, the VLRC consults with expert bodies in the area under review, and also with the general community. After receiving a reference, the general process is to:
• Undertake initial research and consultation with experts in the area under review
• Publish an issue or discussion paper, which explains the key issues and asks the community questions
• Invite and consider written submissions from members of the public, organisations, legal bodies and interested individuals or groups
• Undertake consultation with interested and relevant individuals and groups – this could include public forums or roundtable discussions
• Ask experts to research areas requiring further information – findings are sometimes published as an occasional paper
• Publish a report with recommendations for changes in the law – either a final report or an interim report if further comments from the community is desired
• Table the report in the Victorian Parliament
Strengths and Weaknesses of Methods of Influencing Changes in the Law
Strengths Weaknesses
Victorian Law Reform Commission - The government has asked the VLRC to investigate an area and therefore the government is more likely to act on its report on the need for change
- Can gauge public opinion by receiving public submissions and holding seminars in which people can have their say.
- Able to investigate an area comprehensively so that the government can initiate a new law that covers a whole issue, such as the Abortion Law Reform Act 2008 which was the outcome from the VLRC abortion report - Can only investigate issues referred to it by the government or minor issues that it can look into with a reference
- There is no obligation on the part of the government to follow any of the recommendations made
- Investigations can be time consuming
Petitions - Can make direct communication with the government when petition tabled
- Can show a high degree of support when a lot of signatures obtained
- Can arouse public awareness of an issue when collecting signatures
- E-petitions can gather large support over the internet - Many petitions are presented to parliament and parliament cannot respond to them all
- They are not as visual as other methods such as demonstrations so less likely to gain media support
- It may be difficult to obtain large numbers of signatures
- The minister tabling the petition may have little influence on government policy for new laws
Demonstrations - If numbers are large, the media is likely to report on demonstration
- With media support, they are likely to gain wide support for a cause
- Can arouse public awareness of the issue - They have to be publicised well to get the numbers to attend to make an impression
- Unless there is ongoing support and media attention, they are likely to have little effect
- They are time consuming to organise
Media - Can gain a groundswell of support for an issue if the issue is widely reported, such as through radio, television, newspapers and blogs
- The government is fully aware of the issues that the media is covering and gauge public support about an issue through the media
- Without the support of the media, other methods of influencing changes in the law will have little effect - Can show that there are very strong conflicting views on an issue, such as same-sex marriage, which will deter the government from changing laws in this area
- The government will only take on board an issue if it fits in with their legislative program and there is a high level of community support
- Letters to the editor, newspaper reports, radio, television and blogs will only be influential if the public gets behind an issue and demands a change in the law
- Change in the law usually requires bipartisan support, or at least support of the minor parties and independents
The Legislative Process
Initiation of
Legislation
Legislative process (law-making by parliament) begins with a problem that has been identified in the community and which the government thinks should be addressed by a change in the law. Law-making is the main role of parliament.
The major role of parliament is to make laws that reflect the social, moral, economic and political values of the society it represents. Once parliament assesses that there is a need for change in the law, it will draft a bill. A bill is a proposed law, to be introduced and passed through parliament. A bill becomes an act (a law) only after it has been passed in identical form by both houses of parliament and has received the assent of the Queen’s representative.
Government Departments
Government departments constantly review the laws in operation and the need for changes in the law. For example, the Department of Climate Change and Energy Efficiency is responsible for investigating changes in the law to reduce Australia’s greenhouse gas emissions.
The Role of Cabinet and Ministers
Cabinet is made up of the prime minister and senior ministers. Cabinet ministers decide on which laws need to be changed.
Cabinet decides what bills need to be introduced to parliament and is therefore very influential on bills that are passed through parliament. This is particularly the case when the government holds a majority in both houses, as bills that are proposed by cabinet will receive the support of the majority in both houses.
Parliamentary Committees
Parliamentary committees have been set up to investigate a variety of matters and report back to parliament. They consist of members of parliament and are established because parliament does not have the time to carry out its own enquiries into particular aspects of society and the possible needs for changes to the law. Committees may be asked to investigate the need for change in the law and make recommendations to parliament.
Scrutiny of Bills
At both federal and state levels, bills are scrutinised by parliamentary committees. This scrutiny can occur before or during the progress of a bill. The main advantages of the process of referring proposed legislation to committees are that committees:
• provide further scrutiny of proposed legislation
• are able to undertake through examination of proposed legislation – such examination by a small committee specially selected for its particular expertise is quicker than examination by the whole house
• are able to hear submissions from interest groups and individuals in the community interested in the proposed legislation
• provide the public a chance to contribute to the legislative process
Progress of a Bill through the Parliament
A bill may be introduced in either the upper or the lower house, except money bills which must be introduced by the government in the lower house.
Original House
Introduction and first reading The minister who wishes to introduce a bill gives notice of his or her intention to bring the bill into the house. The member in charge of the bill reads the title of the bill and move ‘that the bill be now read a first time’. There is no debate. Copies of the bill and explanatory notes are circulated to all members of the house.
The introduction and first reading are separate stages in the Commonwealth Parliament.
Second reading Compatibility statement is considered – The member of parliament introducing the bill must lay before the house a statement of compatibility, which states whether the bill is compatible with the Charter of Human Rights and Responsibilities, giving reasons. If, in the member’s opinion, any part of the bill is incompatible with human rights, the nature and extent of this incompatibility must be explained during the second reading speech, Purpose of the bill – In the second reading speech the relevant minister (or private member) outlines the purpose of the bill. At the end of the minister’s second reading speech he or she presents an explanatory memorandum to the house, explaining the reasons for the bill and outlining its provisions.
Debate is usually adjourned and set down as an item of business for a future sitting. The purpose of this pause in proceedings is to provide the members of parliament with the opportunity to study the bill and its effects before speaking and voting on it, and to provide time for public discussion and reaction.
The second reading debate usually commences with the relevant opposition minister delivering the main opposition speech in response to the bill. Government and opposition members then usually speak in turn. The second reading debate is normally the most thorough debate that takes place relating to the general principles of the bill. A vote is taken at the end of the debate.
Committee stage – consideration in detail This stage may be eliminated if the house unanimously agrees. The process of the committee of the whole house is:
• the speaker (lower house) or the president (upper house) leaves the house and the house is then said to be in committee
• each clause of the bill is discussed in detail
• amendments are most likely to be made at this stage
This stage can be replaced by consideration by the main committee in the House of Representatives (a debating committee that meets in a large committee room).
Adoption of the committee report The speaker or president returns to their chair and asks the parliament to accept the committee’s report.
Third reading The long title is read. There is further debate on the bill if necessary.
The bill passes the original house
Second House
Same Procedure The bill goes through the same procedure again in the second house. Any amendments must be communicated to the original house. Messages flow between both houses. Any amendments must be approved by both houses in identical form before a bill can become law. In the Legislative Council the committee stage is referred to as the committee of the whole house. This committee reviews the legislation clause and makes recommendations to the house regarding proposed amendments.
The bill passes the second house
Certification The clerk of parliaments certifies the bill.
Royal Assent The governor/governor-general signs the bill and gives royal assent.
Proclamation The act comes into operation on a day stated in the act or on a day proclaimed by the governor or governor-general in the government gazette. If not otherwise stated, the act comes into operation 28 days after royal assent.
The law now applies The fact that the bill has been passed is published in Hansard.
Effectiveness of Parliament
The state and Commonwealth parliaments are elected supreme law-making bodies within their own jurisdictions. Supremacy of parliament is also sometimes referred to as sovereignty of parliament. This means that they have overriding authority when exercising the law-making powers given to them. There are, however restrictions on parliaments’ ability to make laws.
• Conflicting views within the community – It is very difficult to make law that suits everyone’s needs within the community
• Economic viability – A change in the law may needed but the implantation of that change may not be possible because of financial restraints
• Public debate – Changes in the law may be delayed so public debate can take place. This can often take a long time and the change in the law may be delayed indefinitely
• Constitutional restrictions – The law-makers can only change the law if it is within their jurisdiction to do so
• A hostile upper house – Government may not have majority in upper house which may be hostile to plans for changes in the law and may vote against them. However, the advantage of a hostile Senate is that there is likely to be more vigorous debate about proposed legislation
• Out-dated Legislation – Times and values change rapidly and it is difficult for the government of the day to keep up with the need for changes in the law
• Lack of time – Parliaments do not have the time to pass laws relating to the minor details of a particular area of law. Parliament passes its power to make law to delegated bodies (also known as subordinate authorities), which are not elected by the people (other than local councils).
Strengths and Weaknesses of Law-making through Parliament
Strengths Weaknesses
It is parliament’s primary role to make laws Parliament is not always sitting and so cannot always change the law as the need arises
Parliament is elected by the people and therefore responsible to the people There are often conflicting views in society that hinder parliament in the law-making process. For example, there are conflicting views in society about same-sex marriages
Parliament can investigate the whole topic and make a comprehensive law, for example, the Criminal Procedure Act 2009 (Vic.). It is well-resourced to investigate the need for changes in the law; government departments provide ministers with the knowledge required to initiate necessary changes in the law. Investigation and implementation are very time consuming and parliament may not be able to keep up with changes in society because there are many issues that require the attention of parliament
Parliament has access to expert information and is therefore more able to keep up with changes in society than courts. For example, the VLRC investigated the need for changes in abortion law Investigations may be lengthy and expensive
Parliament provides an area for debate, which can lessen the chance of unjust laws being passed allows different views to be heard The process of passing a law through parliament is time consuming, and if the opposition to a bill is strong it can result in the bill not being passed or being considerably watered down. For example, the Commonwealth Government tried to persuade the Commonwealth Parliament to pass a law bringing in an emissions trading scheme but it was defeated in the Senate. The Gillard Government was later able to successfully negotiate with the independents and the Greens, which led to the Commonwealth Parliament passing carbon tax legislation
Parliament can delegate its power to make laws to expert bodies Subordinate authorities (other than local councils) are not elected by the people. There may be too many bodies making laws
Parliament is able to involve the public in law-making and gauge the needs of the people It is not always possible to respond to changing values in the community because there may be conflicting values. For example, there has been considerable debate in the community about whether to allow voluntary euthanasia
Parliament can change the law as the need arises Parliament may not be able to foresee all future circumstances and laws can become out-dated
Parliament makes the law In Futuro Parliament can make retrospective laws. This means that laws can be made that make something unlawful after the action has taken place, although this is rare. Retrospective law-making can restore an injustice
Parliament is a supreme law-making body Parliaments are restricted to making law only within their jurisdiction
Summary
Reasons Laws need to change
• Changing values in society
• Changes in society
• Advances in technology
• Greater need for protection of the community
• Greater awareness of the need to protect rights
• Greater demand for access to the law
• Generating changing values in society
Methods used by individuals and Groups to Influence Change
• Petitions and e-petitions
• Demonstrations
• Media o Newspapers o Letters to the editor o Blogs and twitters o Radio o Television
• strengths and weaknesses
Victorian Law Reform Commission
• The main role of the Victorian Law Reform Commission is to undertake research and make recommendations for changes in the law on issues that are referred to the VLRC by the state attorney-general. This is called a reference. The VLRC also has the power to recommend minor changes to the law without a reference from the attorney-general.
• Inquiries o Abortion o Surveillance in public places o Jury directions o Sex offenders registration
Legislative Process – Initiation of Legislation
• Government departments
• Cabinet and ministers
• Parliamentary committees
• Drafting legislation
Legislative Process – Passage of a Bill through Parliament
• The scrutiny of bills at a federal level
• Scrutiny of bills in Victoria
• Progress of a bill through parliament
The Principles of the Australian Parliamentary System
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Representative Government refers to a government that characterises the views of the majority of people. The Government consists of representatives of the people who are chosen by the public.
-Regular Elections
-If government does not represent the needs of the majority of people it is likely to be voted out of office at the next election.
TIP-Do not use a circular definition. Ie. Do NOT say "representative government refers to a government that represents the views of the majority of the people". This definition will not get you full marks. (or should not if …show more content…
your teacher marks according to VCAA standards.)
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Responsible Government refers to the government’s accountability to the voters.
-Government is answerable to the people for its actions.
- Ministers are responsible to parliament and therefore the people
(Ministerial accountability)
- Ministers are responsible to parliament for the actions of their department
- Members of Parliament may question ministers about their and their department’s activities.
- Ministers must act with integrity or resign.
If government loses support of lower house it MUST resign. Hence, Government is responsible to parliament. Parliament is responsible to the people.
TIP-Make sure to not only say that government is accountable to the voters but how government is responsible to parliament and parliament is responsible to the public. Hence the link
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The Principle of separation of powers refers to the fact that there are three separate types of powers in our parliamentary system.
• Legislative power- The power to make laws, resides with parliament.
• Executive power- The power to administer the laws and manage the business of government. Accountable to the legislative arm of government. Under the Constitution this power is given to the executive (governor- general) but in practice it is carried out by government.
• Judicial power-The power to enforce the law and settle disputes given to the courts. Must be kept separate and independent from legislative and executive powers.
Example of separation of powers: Criminal Law- Creation of a new criminal offence is a legislative power (act of parliament), the enforcement of the law is and executive power (police) and when an offender is brought before a court for trial this is a judicial function.
Under the principle of separation of powers, the three powers are separate that any one body which administers one power may not take over the power of another body that administers another power.
Separate nature of judicial power- Not to be combined with other powers. Safeguards citizens from the misuse of political power of corruption in the resolution of disputes. (People who make the law aren't enforcing it. - Conflict of interest)
Reasons for the separation of powers:
• Provides the stability of government and freedom of people
• Provides independence between the bodies that make the law and the bodies that enforce the law
• Provides a check on the power of parliament to ensure that it does not go outside its area of power
TIP-Executive power will be the one that screws you up if anything. It is given to the gov-gen but in practise the government administers the executive powers.
Make sure to explain why their is a separation of powers and what is limits. (Absolute power= corruption)
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Structure of State and Commonwealth Parliaments
-One central government; The Commonwealth Parliament
-Many State Parliaments
The bicameral system means two houses, an upper house and a lower house. Queensland and the territories only have one house.
TIP- Bicameral also includes the Queens representative.
TIP- Upper house and Lower house at each level have similar functions. Senate has one main differences between Legislative Council, it acts as a State's house to ensure State's interests are maintained through equal representation.
The role of the Crown is to:
• Appoint a federal executive council to give advice about the government, establish departments of government and appoint ministers to administer them.
• Designate parliamentary session times
• Bring session of parliament to an end
• Dissolve the House of Representatives to bring about an election
• Give or withhold royal assent
• Make delegated legislation as part of the executive council
• Appoint judges to courts The role of the Houses of Parliament is to:
• Make laws on behalf of the people for the good government of society
• Provide for the formation of government
• Provide a forum for popular representation
• Scrutinise the actions of government
• Delegate some of its law making power to subordinate authorities
• Balance the books- what revenue is required and how it is to be spent.
TIP-Knowledge of 2-3 of EACH of these will suffice
Commonwealth Parliament Queens rep (Crown): Governor General Upper house: Senate. Lower house: House of Representatives
The House of Representatives
• Initiates laws- this is the main function of the House of Representatives
• Determines the government – political party with majority in House of Representatives forms government and leader becomes prime minister
• Scrutinsers government administration
• Controls government expenditure- the government cannot spend money or raise taxes without the necessary acts of parliament being passed
• Representing the people- citizens may present petitions to parliament and raise matters of concern
TIP- Two- Three will suffice
Additional Information
• People's house
• 150 Members-each member represents an electoral devision
• Terms of office: 3 years
The Senate
• Main role is to make laws (money bills cannot be initiated in Senate)
At the time of federation the Senate had 2 main roles
• States’ house- States (especially smaller ones) were afraid that they would give up too much power to the Commonwealth at the time of federation so therefore S7 of the Constitution states that each state, regardless of size or population, will have equal representation.
• House of review- Majority of bills are initiated in the lower house and the Senate has the task of reviewing the bills already passed in the lower house.
Additional Information
• 76 Senators
• Each state has 12 representatives
• Two representatives per territory
• Senators are elected for a period of 6 years. Half of the senators are elected every 3 years.
Effectiveness of the Senate
Senators tend to vote according to the dictates of their party. This means that the Senate does not fulfil its role as a states’ house or a house of review. If the government has a majority in the Senate it tends to be a ‘rubber stamp’ on decisions made in the lower house.
TIP- Think about the differences between theoretical and practical roles of each house
Victorian Parliament Queens rep (Crown): Governor Upper house: Legislative Council Lower House: Legislative Assembly
Legislative Assembly
The role:
• House of government. Majority party earns government
• Main role is to make laws. Most bills initiated in Legislative Assembly.
Additional Information
• 88 districts
• One member per district
• 4 year fixed term. Elections held on last Saturday in November every 4 years.
Legislative Council
• Role: House or review
Additional Information
• 8 regions
• Each region consists of 11 districts
• 5 members of the Legislative Council will be elected for each region
• Total of 40 MLCs
Going Further-Double Dissolutions The governor-general has the power to dissolve both the House of Representatives and the Senate at the same time- a double dissolution. This happens when the Senate rejects a bill passed through the House of Representatives and then the House of Reps. passes the bill again and the Senate rejects it again. This rarely happens.
Definitions
The government is the party with the majority of members in the lower house of parliament.
Cabinet consists of the prime minister and senior ministers. It’s role is to decide on general government policy and to formulate proposed laws (bills) to be introduced to parliament.
Parliament is the law making body consisting of all members of both houses from all political parties.
Area of Study 2
Changing the Law
The main aim of the law is to protect our society and keep it functioning. The law also aims to protect individual rights and to stop behaviour that will ultimately affect the peace and good order of society. Laws also need to be able to outline acceptable behaviour and prevent conflict within society.
Key Knowledge
• The reasons why laws may need to change
• The role of the Victorian Law Reform Commission
• The means by which individuals and groups influence change, including petitions, demonstrations and use of the media
• The legislative process for the progress of a bill through parliament
• Strengths and weaknesses of parliament as a law-making body
Key Terms
• Formal Pressure – Pressure for change in the law arising from the formal structures of government and parliament
• Informal Pressure – Pressure for change in the law arising from outside the formal structures of government and parliament
• Lobby – To attempt to influence the passage of legislation of government policies
• Pressure Group – A group of people who have common interest in trying to influence changes in the law
• Victorian Law Reform Commission (VLRC) – A permanent body established by the Victorian Parliament specifically to investigate the need for change in the law
• Demonstration – A public exhibition of sympathy or support for a particular issue; a mass meeting
• Terms of Reference – Instructions given to an organisation (for example, a law reform body) setting out the parameters within which an investigation will operate
• Subordinate Authorities – Bodies to whom parliament delegates law-making powers
• Abrogate – Abolish; law made through courts can be cancelled by an act of parliament if the act specifically states that it abolishes the law made by the courts
• Bill – Proposed law
• Cabinet – The policy-making body of the government, made up of senior ministers and the prime minister (federal) or premier (state)
• Delegated Legislation – Rules and regulations made by subordinate authorities
• Legislation – An act of parliament or set of acts
• Office of Parliamentary Counsel – The office of parliamentary counsel is responsible for drafting legislation; the drafters are given instructions from cabinet about the purpose and extent of proposed laws
• Scrutiny of Acts and Regulations Committee – A Victorian joint investigatory committee that looks at new bills as they make their passage through the Victorian Parliament
• Senate Scrutiny of Bills Committee - A senate committee that is responsible for examining all bills that come before the Commonwealth Parliament
Changing Laws
Reasons for change
Laws need to change to reflect the needs and values of the community
• Changing values in society
• Changes in society
• Technological …show more content…
advances
• Protection of society
• Greater protection of individual rights
• Political changes
• Greater demand for access to the law
Reason for change Example of change in the law
Changing Values - Relationships Act 2008 (Vic.)
- Proposal for same-sex marriages
- Domestic Animals Amendment (Puppy Farm Enforcement and Other Matters) Act 2011 (Vic.)
Changes in Society - Competition and Consumer Act 2010 (Cth)
- Justice Legislation Amendment Act 2011 (Vic.)
- Liquor Control Reform Amendment Act 2010 (Vic.)
- Crimes Amendment (Bullying) Act 2011 (Vic.)
Advances in technology - Crimes Amendment (Identity Crime) Act 2009 (Vic.)
- Assisted Reproductive Treatment Act 2008 (Vic.)
- Suggestions to change surveillance laws
Protection of the community - Regulations relating to mobile phone use
- Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 (Vic.)
- Crimes Legislation Amendment (Food and Drink Spiking) Act 2009 (Vic.)
Protection of rights - Equal Opportunity Act 2010 (Vic.)
- Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
Access to the law - Victorian Civil and Administrative Tribunal Act 1998 (Vic.)
- Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010 (Vic.)
- Neighbourhood Justice Centres
Generating changing values in society - Shop Trading Reform Amendment (Easter Sunday) Act 2011 (Vic.)
- Equal Opportunity Act 2010 (Vic.)
Influences for change
Most law reform is initiated through parliamentary ministers, who take advice from their department and law reform bodies (regarding how to change the law).
• Informal: Participants - (individuals, groups)
• Informal: Methods – Petitions, demonstration, media, court precedent
• Formal: Victorian Law Reform– Abortion Commission, Cabinet, Government Departments
Effective Laws
• Reasonable, able to be enforced, consistent, reflect community values, must be known by the community, able to be changed, easily enforced
Strengths and Weaknesses of Parliament as a law making body
The primary role of parliament is to make laws on behalf of the community, although this is hindered by the fact that parliament is not always sitting. The role of courts is to interpret the law made by parliament and resolve cases that come before the courts. In this process courts sometimes also create precedents that form part of the law to be followed in the future.
Strengths Feature Weakness
• More flexible and efficient law making
• Parliament allows law-making to be directly responsive to local needs. Delegating Law making power: Ability to delegate legislation to different bodies • Does not adequately supervise delegated legislation.
• Lessons the extent to which parliament can be the prime source of law.
• Legislation reflects the majority of people
• Allows for feedback to laws Democratically Elected: Parliament is elected by the people • Parliament may be reluctant to pass controversial laws as they may be voted out in the next election
• They become subject to political pressures
• Parliament can organise committees, working parties and special bodies to prepare recommendation for appropriate action
• Has the resources and expertise to make laws
• Capable of undertaking comprehensive law reform The ability to make/change laws • Parliament often does not meet enough to make regular changes to laws. Sits generally 40-70 days per year.
• Laws cannot be changed when parliament are not sitting.
• Members of society are able to know what the law is and how it applies to them in abundance Making law Futuro • Parliament may not always be able to foresee future circumstances when drafting laws.
• Allows debate and members to be informed.
• Members of parliament can inform public and public can follow debate.
• Laws have been fully considered and represent the views of the people. Debate Arena • Members don’t often represent the entire community.
• Members vote along party lines
• If majority holds power in Lower and Upper House it is less effective.
Methods of Change
Informal means Courts (precedent), pressure groups, individuals, lobby groups, media, and political parties
Informal Pressure comes from individuals or groups who are not connected with the law-making process and cannot be instrumental in changing the law, but who can try to influence the law-makers to change the law. Informal pressures can increase public awareness of a problem and encourage parliament to investigate an issue. Informal pressure may come from such sources:
• Individuals
• Political Parties
• Pressure Groups
• Trade Unions
Formal means VLRC and other law reform bodies, MP’s, Cabinet, Government Departments, Parliamentary Committees and statutory bodies (e.g. VicRoads, SEC, local councils)
Formal Pressures for changes in the law come from within the formal structures of the law-making process and include:
• Cabinet, which is responsible for deciding what changes in the law should take place
• Government Departments, which decide what changes in the law are required in their area
• Parliamentary Committees, which are asked by parliament to investigate an issue
• Law Reform Bodies, which are responsible for investigating the need for changes in the law as needs arise
Other methods of influencing changes in the law include:
• Defiance of the Law – occurs when someone feels strongly enough to break the law, despite the risk of being punished, in attempt to show the general public and the law-makers that injustices are occurring because of an out-dated law. The method of trying to influence the law-makers is often not successful as the lawmakers do not want to be seen as giving in to people who defy the law. However, if the suggested change in the law has sufficient community support, this can lead to changes occurring. For example, shopkeepers opening their stores during restricted hours has led to almost unrestricted shopping hours.
• Lobbying – Professional lobbyists in Canberra are employed by individuals or groups to lobby members of parliament, particularly cabinet ministers. They are often former politicians who have made many important contacts in parliament. It is also possible for individuals or groups to lobby members of parliament personally to try to influence a change in the law.
• Submissions to Law Reform Bodies – Individuals and groups can influence changes in the law by making suggestions to formal law reform bodies during their investigative processes. People are encouraged to make submissions to current inquiries being undertaken by law reform bodies, such as the Victorian Law Reform Commission (VLRC)
• Courts – Courts can play a role in influencing changes in the law. Courts are able to change the law, although they are limited in this role as they can only do so when a case comes before them and only in relation to the issues in the case. Individuals can be instrumental in bringing about a change in the law by taking a matter to court and pursuing it so that a point of law is clarified or established. Judges in court cases can make suggestions that a law needs to be changed. Public outrage following the findings of a court case can lead to a change in the law. For example, the Child Amendment (Child Homicide) Act 2008 (Vic.) was prompted by public outrage about the light sentences given in two high-profile cases of child killing.
• Private Member’s Bills – Most legislation is introduced into parliament by a representative of the government and has the backing of the government. Any member of parliament can, however, introduce a bill into parliament. It usually has little chance of success because it does not have government support and therefore lacks the numbers to vote for it to pass through the house. If the bill arouses public concern, it may be taken up by the government and passed through parliament. An example is the Environment Protection Amendment (Beverage Container Deposit and Recovery Scheme) Bill 2009 (Vic.), which aims to introduce a beverage container deposit and recovery scheme.
Reasons for Change
• Changing values in society
As our values and attitude change, the law (to remain acceptable to the individual in society) must change to keep up with these changing values.
For example, surrogacy arrangement – Assisted Reproductive Treatment Act 2008 – makes provision for altruistic surrogacy arrangement • Changes in society
Society is constantly changing and the laws need to keep pace with this
For example, Summary Offences and Control of Weapons Act Amendment Act 2009 (Vic) has been passed in an attempt to tackle the rising incidence of youths carrying knives - the new law includes on the spot fines for people caught carrying illegal weapons/knives on the streets
• Advances in Technology
Changes in technology necessitate constant changes in the law as new areas of offences develop. Technological advances can create new activities (e.g. internet surfing) in which people can commit crime or can assist in harming the society if used in a negative manner.
As this happens there is often a need to regulate the actions of some individuals and groups in order to protect the rights of others
For example, Internet stalking due to openness of internet and lack of privacy, identity theft (so the Crimes Amendment Identity Crime Act 2009 (Vic) was passed), controversial use of human embryos
• Greater need for protection of the community
At times the laws need to adopt a paternalistic approach to the protection of the community – laws are passed because individuals do not protect themselves, e.g. seatbelts, bike helmets, anti-hoon laws. The community also needs to be protected so that it can function in a harmonious way. One of the major roles of the law is to protect people from harm so laws are required to make certain actions (actions that harm others) unlawful.
For example: In 2009 the use of mobile phones whilst driving was prohibited, Child Amendment (Homicide Act 2008) increased the penalty for killing a child
Victorian Law Reform Commission (VLRC)
The Victorian Law Reform Commission (VLRC) came into operation on the 6th of April 2001. It is an independent, government-funded organisation. It was established to investigate areas of law in which the government feels there is a need for law reform and to monitor and coordinate law reform activity in Victoria. Some of the topics of inquires carried out by the VLRC include abortion, jury directions, surveillance in public places and sex offenders registration.
The role of the Victorian Law Reform Commission
The main role of the Victorian Law Reform Commission is to undertake research and make recommendations for changes in the law on issues that are referred to the VLRC by the state attorney-general. This is called a reference. The VLRC also has the power to recommend minor changes to the law without a reference from the attorney-general.
The VLRC can do the following things:
- It can make recommendations for law reform on matters referred to it by the attorney-general. This includes conducting research, consulting with the community and reporting on law reform projects.
- The VLRC can make recommendations on minor legal issues of general community concern. It can recommend changes in the law relating to minor issues that have not been referred by the attorney-general, but have been brought to the VLRC’s notice by members of the public.
- It can suggest to the attorney-general that he or she refer a law in need of investigation to the VLRC. After consultation with various groups, the VLRC may suggest new references relating to area where change in the law would be desirable.
- It can educate the community on areas of law relevant to the VLRC’s work. The VLRC works with groups in the community to ensure that changes in the law are effective. It also provides relevant information on what the law is.
- The VLRC can monitor and coordinate law reform activity in Victoria. It works with other law reform bodies to ensure effective law reform in Victoria
Process of the VLRC
In assessing the need for change in the law, the VLRC consults with expert bodies in the area under review, and also with the general community. After receiving a reference, the general process is to:
• Undertake initial research and consultation with experts in the area under review
• Publish an issue or discussion paper, which explains the key issues and asks the community questions
• Invite and consider written submissions from members of the public, organisations, legal bodies and interested individuals or groups
• Undertake consultation with interested and relevant individuals and groups – this could include public forums or roundtable discussions
• Ask experts to research areas requiring further information – findings are sometimes published as an occasional paper
• Publish a report with recommendations for changes in the law – either a final report or an interim report if further comments from the community is desired
• Table the report in the Victorian Parliament
Strengths and Weaknesses of Methods of Influencing Changes in the Law
Strengths Weaknesses
Victorian Law Reform Commission - The government has asked the VLRC to investigate an area and therefore the government is more likely to act on its report on the need for change
- Can gauge public opinion by receiving public submissions and holding seminars in which people can have their say.
- Able to investigate an area comprehensively so that the government can initiate a new law that covers a whole issue, such as the Abortion Law Reform Act 2008 which was the outcome from the VLRC abortion report - Can only investigate issues referred to it by the government or minor issues that it can look into with a reference
- There is no obligation on the part of the government to follow any of the recommendations made
- Investigations can be time consuming
Petitions - Can make direct communication with the government when petition tabled
- Can show a high degree of support when a lot of signatures obtained
- Can arouse public awareness of an issue when collecting signatures
- E-petitions can gather large support over the internet - Many petitions are presented to parliament and parliament cannot respond to them all
- They are not as visual as other methods such as demonstrations so less likely to gain media support
- It may be difficult to obtain large numbers of signatures
- The minister tabling the petition may have little influence on government policy for new laws
Demonstrations - If numbers are large, the media is likely to report on demonstration
- With media support, they are likely to gain wide support for a cause
- Can arouse public awareness of the issue - They have to be publicised well to get the numbers to attend to make an impression
- Unless there is ongoing support and media attention, they are likely to have little effect
- They are time consuming to organise
Media - Can gain a groundswell of support for an issue if the issue is widely reported, such as through radio, television, newspapers and blogs
- The government is fully aware of the issues that the media is covering and gauge public support about an issue through the media
- Without the support of the media, other methods of influencing changes in the law will have little effect - Can show that there are very strong conflicting views on an issue, such as same-sex marriage, which will deter the government from changing laws in this area
- The government will only take on board an issue if it fits in with their legislative program and there is a high level of community support
- Letters to the editor, newspaper reports, radio, television and blogs will only be influential if the public gets behind an issue and demands a change in the law
- Change in the law usually requires bipartisan support, or at least support of the minor parties and independents
The Legislative Process
Initiation of
Legislation
Legislative process (law-making by parliament) begins with a problem that has been identified in the community and which the government thinks should be addressed by a change in the law. Law-making is the main role of parliament.
The major role of parliament is to make laws that reflect the social, moral, economic and political values of the society it represents. Once parliament assesses that there is a need for change in the law, it will draft a bill. A bill is a proposed law, to be introduced and passed through parliament. A bill becomes an act (a law) only after it has been passed in identical form by both houses of parliament and has received the assent of the Queen’s representative.
Government Departments
Government departments constantly review the laws in operation and the need for changes in the law. For example, the Department of Climate Change and Energy Efficiency is responsible for investigating changes in the law to reduce Australia’s greenhouse gas emissions.
The Role of Cabinet and Ministers
Cabinet is made up of the prime minister and senior ministers. Cabinet ministers decide on which laws need to be changed.
Cabinet decides what bills need to be introduced to parliament and is therefore very influential on bills that are passed through parliament. This is particularly the case when the government holds a majority in both houses, as bills that are proposed by cabinet will receive the support of the majority in both houses.
Parliamentary Committees
Parliamentary committees have been set up to investigate a variety of matters and report back to parliament. They consist of members of parliament and are established because parliament does not have the time to carry out its own enquiries into particular aspects of society and the possible needs for changes to the law. Committees may be asked to investigate the need for change in the law and make recommendations to parliament.
Scrutiny of Bills
At both federal and state levels, bills are scrutinised by parliamentary committees. This scrutiny can occur before or during the progress of a bill. The main advantages of the process of referring proposed legislation to committees are that committees:
• provide further scrutiny of proposed legislation
• are able to undertake through examination of proposed legislation – such examination by a small committee specially selected for its particular expertise is quicker than examination by the whole house
• are able to hear submissions from interest groups and individuals in the community interested in the proposed legislation
• provide the public a chance to contribute to the legislative process
Progress of a Bill through the Parliament
A bill may be introduced in either the upper or the lower house, except money bills which must be introduced by the government in the lower house.
Original House
Introduction and first reading The minister who wishes to introduce a bill gives notice of his or her intention to bring the bill into the house. The member in charge of the bill reads the title of the bill and move ‘that the bill be now read a first time’. There is no debate. Copies of the bill and explanatory notes are circulated to all members of the house.
The introduction and first reading are separate stages in the Commonwealth Parliament.
Second reading Compatibility statement is considered – The member of parliament introducing the bill must lay before the house a statement of compatibility, which states whether the bill is compatible with the Charter of Human Rights and Responsibilities, giving reasons. If, in the member’s opinion, any part of the bill is incompatible with human rights, the nature and extent of this incompatibility must be explained during the second reading speech, Purpose of the bill – In the second reading speech the relevant minister (or private member) outlines the purpose of the bill. At the end of the minister’s second reading speech he or she presents an explanatory memorandum to the house, explaining the reasons for the bill and outlining its provisions.
Debate is usually adjourned and set down as an item of business for a future sitting. The purpose of this pause in proceedings is to provide the members of parliament with the opportunity to study the bill and its effects before speaking and voting on it, and to provide time for public discussion and reaction.
The second reading debate usually commences with the relevant opposition minister delivering the main opposition speech in response to the bill. Government and opposition members then usually speak in turn. The second reading debate is normally the most thorough debate that takes place relating to the general principles of the bill. A vote is taken at the end of the debate.
Committee stage – consideration in detail This stage may be eliminated if the house unanimously agrees. The process of the committee of the whole house is:
• the speaker (lower house) or the president (upper house) leaves the house and the house is then said to be in committee
• each clause of the bill is discussed in detail
• amendments are most likely to be made at this stage
This stage can be replaced by consideration by the main committee in the House of Representatives (a debating committee that meets in a large committee room).
Adoption of the committee report The speaker or president returns to their chair and asks the parliament to accept the committee’s report.
Third reading The long title is read. There is further debate on the bill if necessary.
The bill passes the original house
Second House
Same Procedure The bill goes through the same procedure again in the second house. Any amendments must be communicated to the original house. Messages flow between both houses. Any amendments must be approved by both houses in identical form before a bill can become law. In the Legislative Council the committee stage is referred to as the committee of the whole house. This committee reviews the legislation clause and makes recommendations to the house regarding proposed amendments.
The bill passes the second house
Certification The clerk of parliaments certifies the bill.
Royal Assent The governor/governor-general signs the bill and gives royal assent.
Proclamation The act comes into operation on a day stated in the act or on a day proclaimed by the governor or governor-general in the government gazette. If not otherwise stated, the act comes into operation 28 days after royal assent.
The law now applies The fact that the bill has been passed is published in Hansard.
Effectiveness of Parliament
The state and Commonwealth parliaments are elected supreme law-making bodies within their own jurisdictions. Supremacy of parliament is also sometimes referred to as sovereignty of parliament. This means that they have overriding authority when exercising the law-making powers given to them. There are, however restrictions on parliaments’ ability to make laws.
• Conflicting views within the community – It is very difficult to make law that suits everyone’s needs within the community
• Economic viability – A change in the law may needed but the implantation of that change may not be possible because of financial restraints
• Public debate – Changes in the law may be delayed so public debate can take place. This can often take a long time and the change in the law may be delayed indefinitely
• Constitutional restrictions – The law-makers can only change the law if it is within their jurisdiction to do so
• A hostile upper house – Government may not have majority in upper house which may be hostile to plans for changes in the law and may vote against them. However, the advantage of a hostile Senate is that there is likely to be more vigorous debate about proposed legislation
• Out-dated Legislation – Times and values change rapidly and it is difficult for the government of the day to keep up with the need for changes in the law
• Lack of time – Parliaments do not have the time to pass laws relating to the minor details of a particular area of law. Parliament passes its power to make law to delegated bodies (also known as subordinate authorities), which are not elected by the people (other than local councils).
Strengths and Weaknesses of Law-making through Parliament
Strengths Weaknesses
It is parliament’s primary role to make laws Parliament is not always sitting and so cannot always change the law as the need arises
Parliament is elected by the people and therefore responsible to the people There are often conflicting views in society that hinder parliament in the law-making process. For example, there are conflicting views in society about same-sex marriages
Parliament can investigate the whole topic and make a comprehensive law, for example, the Criminal Procedure Act 2009 (Vic.). It is well-resourced to investigate the need for changes in the law; government departments provide ministers with the knowledge required to initiate necessary changes in the law. Investigation and implementation are very time consuming and parliament may not be able to keep up with changes in society because there are many issues that require the attention of parliament
Parliament has access to expert information and is therefore more able to keep up with changes in society than courts. For example, the VLRC investigated the need for changes in abortion law Investigations may be lengthy and expensive
Parliament provides an area for debate, which can lessen the chance of unjust laws being passed allows different views to be heard The process of passing a law through parliament is time consuming, and if the opposition to a bill is strong it can result in the bill not being passed or being considerably watered down. For example, the Commonwealth Government tried to persuade the Commonwealth Parliament to pass a law bringing in an emissions trading scheme but it was defeated in the Senate. The Gillard Government was later able to successfully negotiate with the independents and the Greens, which led to the Commonwealth Parliament passing carbon tax legislation
Parliament can delegate its power to make laws to expert bodies Subordinate authorities (other than local councils) are not elected by the people. There may be too many bodies making laws
Parliament is able to involve the public in law-making and gauge the needs of the people It is not always possible to respond to changing values in the community because there may be conflicting values. For example, there has been considerable debate in the community about whether to allow voluntary euthanasia
Parliament can change the law as the need arises Parliament may not be able to foresee all future circumstances and laws can become out-dated
Parliament makes the law In Futuro Parliament can make retrospective laws. This means that laws can be made that make something unlawful after the action has taken place, although this is rare. Retrospective law-making can restore an injustice
Parliament is a supreme law-making body Parliaments are restricted to making law only within their jurisdiction
Summary
Reasons Laws need to change
• Changing values in society
• Changes in society
• Advances in technology
• Greater need for protection of the community
• Greater awareness of the need to protect rights
• Greater demand for access to the law
• Generating changing values in society
Methods used by individuals and Groups to Influence Change
• Petitions and e-petitions
• Demonstrations
• Media o Newspapers o Letters to the editor o Blogs and twitters o Radio o Television
• strengths and weaknesses
Victorian Law Reform Commission
• The main role of the Victorian Law Reform Commission is to undertake research and make recommendations for changes in the law on issues that are referred to the VLRC by the state attorney-general. This is called a reference. The VLRC also has the power to recommend minor changes to the law without a reference from the attorney-general.
• Inquiries o Abortion o Surveillance in public places o Jury directions o Sex offenders registration
Legislative Process – Initiation of Legislation
• Government departments
• Cabinet and ministers
• Parliamentary committees
• Drafting legislation
Legislative Process – Passage of a Bill through Parliament
• The scrutiny of bills at a federal level
• Scrutiny of bills in Victoria
• Progress of a bill through parliament