theoretical + practical functions of parliament

4 main functions of prlt

1. representations

2. legislation

3. responsibility (to form govt + hold it to account)

4. debate (act as the nations’s discussion forum)

3 components of cwth prlt

1. the lower house (HoR)

2. the upper house (senate)

3. a cxally limited crown

aspects of the wash (6)

names of houses of prlt

federalism

s51

s7

s53

malapportionment

federalism

the division of a nation’s sovereignty between one national arm + 2/more regional arms of govt

requires a written cx to divide + allocate roles + powers to the diff levels of govt (DoP)

the aus cx specifies + enumerates legislative + financial powers

• exclusive → cwth

• concurrent → state + cwth, s109

• residual (not specified + enumerated) → state, Ch5 (ss106, 107, 108)

s51

inspired by s8 of the US cx

40 enumerated powers deemed concurrent

many powers are exclusive by nature (e.g. s51xii currency)

other s51 powers are defined as exclusive in other parts of the cx (e.g. defence power in s114)

s7

creates the senate (modelled off the US upper house)

US + aus senate’s are powerful + democratically elected chambers as opposed to the HoL which is weak + hereditary

establishes the senate as the state’s house with = representation

requires the senate to be directly chosen by the people

s53

prohibits the senate from raising or spending $

appropriation bills cannot be raised/amended in the senate

prevents the upper house from behaving like govt + spending taxpayer $

malapportionment

caused by = representation in the senate

one vote one value is undermined as all the states have different population sizes

aspects of the minster (3)

s1

HoR

s24

s1

creates a prlt composed of the monarch, the HoR + the senate

entrenches cxal in the aus political + legal system

HoR

shares representative, legislative + debate functions of both the US + the UK

BUT has the task of creating govt

s24

creates HoR modelled off the HoC → house of the people AND house of govt

states have seats proportionate to their population → achieves OVOV

requires HoR to be directly chosen by the people

guarantees no less than 5 members per state

~2x size of senate (referred to as the nexus clause (knot clause) as it binds the 2 houses in terms of size

representation in theory

elected representative in HoR either model trustee or delegate representation

delegate

• MP is the mouthpiece of their constituents

• directly represent the vs + vs of their constituents, ensure their voices are heard

trustee

• MPs make judgements about their constituents’ best interests

• don’t communicate continuously with their constituents

the senate models state representation

representation in practice

electors identify with a party rather than individual MPs

some independents are able to overcome this and get elected

leader centrism

partisan representation

mirror representation

leader centrism

leaders’ personal traits have become very influential on electors

policies have become less important

puts focus on the PM + LoO rather than local representatives

e.g. 2019 election

• Bill Shorten’s lack of popularity contributed to Labor’s election loss

• voters chose the Morrison Govt despite inner-party divisions

• Liberal Campaign focused on promoting Morrison + attacking Shorten rather than promoting policy → “The Bill Australia can’t afford”

• known as the “miracle election”

practical forms of representation

partisan representation

• party members represent their constituents within their party rather than prlt

• help develop policy in light of constituent views but are subject to party discipline

• represent party’s positions in public/prlt (“toeing the line”) > acting as constituents’ delegate/trustee

mirror representation

• since senate usese STV-PR → senate rep is more heterogenous + accurate

• senate achieves greater political diversity that MIRRORS aus population

influence of aus prlt on political representation

small in size → every seat is essential for govt survival → more party discipline

legislating in theory

role of the cwth is to create statutes authorised by legislative + financial HoPs

statutes are

• well scrutinised

• have different input from MPs

• can be initiated by any MP

• follow the westminster statutory process (emphasis on 2nd reading + committee stage)

the statutory process is repeated 2x across both houses

statutory process is deliberative + exhaustive → ensures all statutes are well-drafted + representative

2nd reading

includes a speech that informs prlt of a bill’s purpose + necessity

debate gives MPs opportunity to represent electorates when “speaking to the bill”

committee stage

opportunity for expert advice + detailed non-partisan work on bills

referred to as Consideration in Detail (HoR) or Committee of the Whole (Senate)

bills are scrutinised line by line

committees can consult professional/expert advice OR travel to assess impact of bill on specific communities

legislating in practice

aus prlt is very efficient at passing legislation (2.5/bills per day in sitting for 45th prlt)

EDiLH → executive can dominate legislative function in the lower house

govt bills are forced through the lower house with prltry procedures

• gagging the 2nd reading debate

• guillotining the debate

• floodgating bills

govt also has control of the HoR Selection Committee

gagging the 2nd reading debate

standing order 81 (HoR), 199 (Senate)

during 2nd reading debate govt instructs a party member of PM to move a motion putting the bill to a vote

govt uses their majority to pass the motion → ends further debate

e.g. Ensuring Integrity Bill (2019)

• bill was amended in the Senate

• govt gagged bill debate once it returned to the HoR

• opposition had no chance to scrutinise amended bill

guillotining the debate

standing order 82-85 (HoR), 142 (Senate)

govt may move a motion to limit allotted debate time by declaring a bill as “urgent

debate ends when the time expires (when the guillotine falls)

floodgating bills

govt introduces many bills simultaneously

overwhelms the deliberative stages of statutory process

used in conjunction with gags + guillotines

results in less scrutiny + representation in bills → dominance of govt views in laws

govt control of the HoR Selection Committee

chaired by the speaker (Milton Dick) but controlled by the govt

examines all bills introduced to the HoR

usually rejects bills opposed by govt → less likely for PMB success

dealing with bills in the HoR

2 pathways

method 1

• for complex/controversial bills (usually govt bills to enact policy)

• follows usually statutory process but is subject to standing orders that speed up/minimise effective scrutiny + democratic input

• votes are either decided on the voices or through divisions

method 2

• for uncontested bills

• pass through federation chamber (includes all MPs from HoR + Senate)

• receive less debate/scrutiny → speeds up SP

• bills which require extensive debate return to the HoR

dealing with bills in the Senate

all bills from HoR pass through Senate Standing Committee for the Selection of Bills

committee determines whether a bill should go through legislative committees for detailed examination or pass quickly through → ensures efficiency

standing orders less common

senate committees are composed of a variety of parties in proportion to senate representation, not controlled by govt → larger scope to debate + scrutinise bills

govt must negotiate + compromise for bills to pass through Senate

e.g. Ensuring Integrity Bill (2019)

• didn’t pass Senate

• PHON sided with Labor to vote against the bill

responsibility in theory

relies on unwritten conventions

govt must have confidence of the lower house

• can be defeated in a VoNC

individual ministerial responsibility

• individual ministers may be dismissed through a censure motion

• held accountable for their conduct, competence + performance in their portfolio

cabinet secrecy

• cabinet room is the most secure room in prlt house

• windowless, soundproof, security checks

cabinet solidarity

• minister can only debate govt policy in cabinet

• cabinet decisions bind all ministers + they must publicly support them

also incl:

question time

scrutiny of govt spending

standing + select committees

question time

ministers must answer questions posed to them by MPs, answers cannot be misleading

can respond immediately or take it on notice

if a minister gives a misleading answer, they can be censured as per WC

scrutiny of govt spending

govt can only spend money that has been authorised by prlt

annual budget + appropriation bills are means by which prlt monitors govt spending = executive activity

standing + select committees

MPs (excluding govt ministers) form committees

have strong investigative powers + can inquire into govt matters

responsibility in practice

party discipline → govts will seldom lose VoNC or censure motions in the lower house and they can be defeated in a bloc vote of the party

EDiLH → I + CMR being less effective in practice

the level at which a govt can be held responsible often depends on the size of their majority

types of debate

grievances

urgency motions

matters of public importance

private members’ business

…

parliamentary privilege

ultimate for of freedom of speech

laws such as tort of defamation don’t apply when MP is speaking in prlt → can debate without fear of legal consequence

HoR + senate have committees that ensure MPs don’t misuse enhanced free speech

e.g. Craig Thomson (ALP)

• reprimanded by prlt on the advice of the HoR privileges committee

• found out for misleading the house in question time

debate in practice (HoR)

EDLH → inhibits debate function

• govt prioritises govt bills, little debate opportunities when deciding schedule

• govt can extend govt business time with a simple vote

• standing orders

adversarial nature of the lower house

• govt + opposition try to “win the day” > actually debate

• committee debate is most effective as there is less political point scoring

debate in practice (senate)

more effective due to less executive dominance and more diversity

freer + more representative of societies views

non-govt members able to speak

committees are less likely to be controlled by govt

debate in practice (within parties)

occur in party rooms (e.g. Liberal Party Room or Labor Caucus)

private, no media → no point scoring → better deabte function

debate policy, represent community concerns, discuss national issues, develop political strategies

provides an opportunity for backbenchers to hold govt to account (form of modern RPG)

liberal party room

Turnbull + senior cabinet ministers wanted to introduce National Electricity Guarantee Bill

rejected by the conservative liberal faction

the emission reduction component was consequently abandoned

Dutton launched a leadership challenge against Turnbull but failed

this weakened Turbull’s leadership and consequently made it easier fro Morrison to take power

shows how party room debates allow for constituent representation + an opportunity for party members to hold govt to account