Representation and legislation

Chapter 1 of the constitution

• Key sections relating to parliamentary power include:

  • Section 7 → creates and defines the Senate.

  • Section 24 → creates and defines the House of Representatives.

  • Section 51 → enumerates (lists) 40 legislative powers of the Commonwealth Parliament.

  • Section 53 → limits the Senate’s power regarding money (appropriation) bills.

Four main functions of CW parliament

1. Representation

• Represents the Australian people through elected members.

• Senate represents the states; the House represents people by population.

2. Legislation

• Makes statute law

  • Appropriation Acts (money bills).

  • Ordinary Acts (non-money bills).

3. Responsibility

• Forms the government (executive).

• Holds the government accountable (through question time, committees, debates).

4. Debate

• Acts as a national forum for discussion of public issues, policy, and proposed legislation.

Sources of parliament’s power

• Constitution

• Conventions- unwritten tradition inherited from Britain

Structure of Australia’s parliament

• Westminster conventions (e.g. fusion of legislative and executive) alongside

• Washington (federalism, division of power, written constitution)

• Components are

  • Crown ( a constitutional monarchy

  • A powerful, democratic Senate modelled on the US senate, with malapportionment.

  • A representative and responsible House modelled on the House of Commons that forms government.

Division of powers

Exclusive

• by nature: s51(x) fisheries beyond territorial limits

• by provision: Customs and excise (s90)

• by another: section 51(v) defense power made exclusive by s114 (prevents states from raising military forces)

Concurrent

• Section 51

• doesn’t say “exclusive” so assumed to be concurrent unless made exclusive elsewhere

• (40 enumerated powers) e.g. marriage, trade, taxation

• Conflict resolved by s109.

Residual

• Powers not listed in constitution remain with states

• Protected by:

  • Section 106 (state constitutions)

  • Section 107 (state legislative powers)

  • Section 108 (state laws)

Senate in theory

• Section 7 establishes the senate and provides

• “equal representation of the original states, 12 senators each”- house of the states

• “directly elected by the people of the state”- democratic legitimacy

• House of review given by s53 (equal power as the HoR excluding money bills)

Senate structural impact

1. Malapportionment

   • Equal representation despite unequal population sizes creates disproportional influence.

   • Small states (e.g., Tasmania) are overrepresented.

2. Strong upper house

   • Unlike the British House of Lords.

   • Elected, powerful, and can block legislation.

     Significance of section 53

     • Senate cannot initiate or amend, but can block or reject

     • Prevents senate from wielding excessive power

     • Mirrors US system

     Political Consequence: 1975 Crisis

     • Senate refused to pass the Whitlam Government’s budget bills.

     • Led to the 1975 dismissal.

     • A new constitutional convention now requires negotiation of money bills before reaching the Senate to avoid similar crises.

Senate in practice

• partisan house where senators vote along party lines not according to state interests, resulting in Senate acting as a house of review, not simply a protector of states.

• Senate acts as an independent, active house of review

• Increased diversity of upper house allows it to act as an independent executive check, necessitating negotiation

• committees which offer high level of scrutiny and collaboration

Senate electoral systems and their impact on diversity

First past the post

• two party dominance with similar political compositions across both houses due to plurality and winner's bonus

Preferential voting (1918)

• allowed greater voter choice but senate composition still largely mirrored lower house results

STV

• Ensure representation aligns with vote share (quota system allows transfer of surplus votes and preferences for proportional outcomes)

• Produce multi-party parliaments

• Encourage negotiation, consensus and accountability

• Enhance diversity and representation (low quotas allow easy election of diverse candidates)

Senate diversity

Parties can nominate more diverse candidates since voters vote overwhelmingly above the line (for parties), enhancing democratic representation (gender, ethnicity, political ideology).

• Senator Steele-John

• Multiple forms of diversity- young (23 in 3017 when he was elected), has a disability (wheelchair), member of a minor party (Greens)

• Diversity would make HoR election unlikely because preferential voting and single member electorates favor maor parties.

• Advocated strongly for a Royal Commission into the abuse of disabled people in prison.

Majoritarian system

• Produce two-party dominance.

• Lead to strong governments and oppositions.

• Limit minor party success and reduce political diversity

• Encourage competition rather than cooperation by limiting incentive for cross party collaboration

FPTP and Preferential

Types of representation (5)

Delegate

• doesn’t exercise personal judgement; simply re-presents views, values and concerns of constituents directly in parliament.

• Linked to direct accountability and responsiveness.

Trustee-

• uses own judgement to make decisions in the long term best interests of electorate without constant consultation.

• Representatives have independence and the ability to act beyond immediate public opinion.

State-

• senate represents states as equal political units to provide an institutional voice for states in federal decision making.

• Unique to federation and based on model of US federal upper house.

Partisan

• Primary mechanism of representation.

• MPs represent constituents via party processes.

• Party room is where constituent interests are voiced.

• Party loyalty overrides personal judgement or local opinion.

• Necessary in a small Parliament where every seat affects government survival.

Mirror

• Achieved through proportional representation (PR) used in Senate elections.

• Low quotas:

  • 14.3% in a standard half-Senate election,

  • 7.7% in a double dissolution.

• Enable:

1. Demographic diversity

   • Senate includes more women, migrants, people with disabilities, and younger candidates.

   • House remains more homogenous (mostly male, Caucasian).

2. Political diversity

   • Minor parties, micro-parties, and independents can win seats.

   • Senate composition more closely reflects national vote distribution than the House.

House of representatives

1. Representation by population

   • Seats allocated to states by population (one vote, one value principle).

   • NSW 47 seats; WA 16; SA 10 (current example).

2. “Directly chosen by the people”

   • Ensures electoral democracy.

3. “Minimum of 5 seats for Original States”

   • Guarantees Tasmania at least five MPs despite a small population.

4. Nexus Clause

   • House must be “as nearly as practicable, twice the size” of the Senate, preventing government from stacking the House to dominate joint sittings as any expansion of House members will also increase Senate members, preserving the review function of the Senate (where government lacks a majority).

House of represenatives in theory

• refers to how the Parliament reflects and expresses the will, interests, and values of the Australian people (the demos).

• Theory comes from Britain’s Westminster tradition

• a Westminster-style lower house (delegate/trustee roles)

• Historically understood through individual elected representatives since parties were weak during early British and colonial parliamentary history

House of representatives in practice

Differs because of

1.Partisanship of MPs

2. Party allegiance of voters

• leader centrism

Theory supported by influence of strong independent candidates

Partisanship of MPs undermining theory

• MPs belong to political parties that provide:

  • organisational resources

  • campaign funding

  • policy platforms

  • electoral branding

• In return, MPs must follow party discipline- representing their constituents within the party instead of directly in parliament

• toe the party line and speak and vote according to party decisions not as delegates or trustees

Party discipline + example

• requires that all members publicly support and vote for that position regardless of their personal views.

• Maintains stability, unity and predictability of government and legislation

• MPs remain loyal, supporting re-election and career

Example: Morrison Coalition Government (2019) – Income Tax Cuts

• The Coalition had committed to reducing personal income tax.

• All Coalition MPs in the House of Representatives voted along party lines to support the tax cut bills.

• In the Senate, the bill stalled because government did not have a majority.

• The government had to negotiate with Centre Alliance, and Independent Senator Jacqui Lambie to pass the bill unamended.

• This highlights:

  • the importance of party unity in the lower house, and

  • the Senate’s role as a more independent, diverse chamber.

Party room

• internal meeting space of a political party's elected members — MPs and Senators.

• party members debate policy, decide party positions, resolve internal disagreements, and work out strategy.

• Decisions can be made:

• imposed by the leadership team (leader and senior ministers/shadow ministers).

• by consensus (agreement among members), or

Breaking party ranks/ crossing the floor

• happens when their constituents’ interests conflict with party policy, or their personal moral conviction is stronger than party loyalty.

• Highly unusual because modern Australian politics is highly partisan; members rely on party for resources, funding, staff, ministerial opportunities etc.

• Crossing the floor can result in isolation from colleagues, stalled career progression, and punishment within the party room

Example: George Christensen (Nationals – Dawson, QLD) 2017

• National Party MP for a rural electorate where many farmers were affected by alleged corrupt banking practices, including forced farm repossessions. A Royal Commission into Banking Misconduct was strongly supported by his constituents.

• However, the Coalition Government opposed establishing the Royal Commission.

• Christensen threatened to cross the floor and vote with the ALP Opposition to create the Commission.

• His actions forced the government to reverse its policy and support the Hayne Royal Commission.

• In this moment, he acted as a delegate/trustee, prioritising constituents, not as a partisan representative.

Leader centrism causing party allegiance of voters

Reasons

• 24/7 media cycle

• personalised political advertising

• social media

• presidential-style campaigning

Effects on representation

• Many electors vote for or against a leader, not for their local MP.

• Policies are less important than perception of leadership qualities.

Example: 2019 Federal Election

• Despite the Coalition Government’s poor record and internal instability — including a leadership spill, factional divisions, and losing a key legislative vote — the 2019 election outcome showed the strong influence of leader-centrism in Australian politics.

• Although many polls predicted a Coalition loss, voters responded more favourably to Scott Morrison’s leadership style compared to Opposition Leader Bill Shorten’s unpopularity.

• As a result, the Morrison Government was re-elected, demonstrating that the personal image and popularity of party leaders can outweigh policy performance and party reputation in influencing electoral outcomes

Influence of strong local candidates challenging leader centrism

Independents as true delegate/trustee representatives can overcome party allegiance and leader centrism

Voters may choose Independent candidates who:

• have a strong personal profile,

• engage heavily with local communities,

• run grassroots campaigns.

Key Examples (2019 Election)

• Independent candidate, Zali Steggall — a former Olympic athlete — defeated Liberal and former Prime Minister, Tony Abbott, in the Sydney seat of Warringah. Abbott’s unpopularity and Steggall’s high public profile were factors in the result.

• Helen Haines succeeded retiring Independent Cathy McGowan in Indi — the first-ever Independent-to-Independent succession. Achieved through Voices for Indi, a grassroots campaign.

Legislation

Sources of parliament’s law making power

• Legislative heads of power (e.g., trade, marriage, defence)

• Financial heads of power (e.g., taxation, appropriations)

Legislation in theory

Theoretical qualities

• Well scrutinised and carefully examined (speeches, debates, inquiries)

• Representative- Have diverse input (representation of different electorates, backgrounds and political views that reflect Australia). Second reading debate allows all MPs or senators to express views, highlighting partisan and non partisan arguments + public interest issues

• Accessible- Can be initiated by any MP (government bills that make up the majority of legislation, and private members bills )

• Deliberative- Follow the statutory process (multiple stages to ensure deliberation, scrutiny and representation) Committee stage (Consideration in Detail or Committee of the Whole)- bills examined closely and committees consult experts, professionals, community organisations and affected groups. Ensures bill is workable, improves the law and identifies unintended consequences.

• Checked and balanced- through review by an independent senate that repeats the entire legislative process, deliberatively scrutinising the legislation independently + using its diversity to check the lower house

Legislation in practice

Theoretically slow and deliberative, practically efficient

Theoretically deliberative and representative, practically executive dominated

Theoretically slow and deliberative, practically efficient

• Example- parliament sat 105 days between 2016 and June 2018 and passed 265 bills through the Senate, giving an average 2.5 bills per sitting day.

• Shows the speed at which legislation can move when the government controls the lower house and uses procedural tactics.

Example: Migration Act 1958

In July 2015, the Abbott Government passed emergency amendments to the Migration Act 1958:

• High Court challenge threatened offshore detention.

• Government introduced a bill to close legal loopholes.

• Bill passed in only two days—before the High Court made a ruling.

Theoretically deliberative and representative, practically executive dominated

• Reduced debate → reduced representation and scrutiny.

• Government’s view dominates legislation.

• Very few private members' bills succeed.

• Caused by use of tactics, prevention of private members bills and party discipline

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Tactics

• speeds up government lawmaking,

• reduces deliberation and scrutiny,

• restricts representation of diverse views.

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Gag

• Used during the second reading debate.

• A government MP moves a motion to put the question to a vote immediately. MPs waiting to speak lose their chance.

Example: Ensuring Integrity Bill 2019

• Senate initially rejected the bill.

• Government reintroduced an amended version in the House.

• Rather than allow debate, the government gagged the second reading.

• Opposition was denied scrutiny time.

Guillotine

• fixed time limit for debate, forcing vote regardless of discussion and scrutiny being unfinished

Floodgating

• introduction of many simultaneous bills to overwhelm capacity to examine each bill thoroughly

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Preventing private members’ bills from passing

1. House Selection Committee (controlled by government) and agenda (controlled by government) can deprioritize PMB

2. Most legislative time is allocated to government business.

3. Procedural delays e.g. excessive amendments or stalling in committees to ensure bill doesn’t pass before end of session

4. use numbers to vote against

Example: Marriage Equality Bill 2015

• Introduced by Bill Shorten and Tanya Plibersek.

• Government adjourned the debate indefinitely, preventing progress.

• Eventually, marriage equality passed through government legislation in 2017, not via this private member’s bill.

Bill pathways

• decided by House Selection Commitee

• dual pathway system enhances speed and efficinecy

• Main chamber (house floor)

• Federation chamber

Main chamber/ house floor

Used for:

• complex bills,

• controversial or political bills,

• most government bills.

Characteristics:

• Full statutory process applies.

• Debate may be gagged or guillotined.

• Final votes often by division.

Federation chamber

Used for:

• uncontested bills,

• technical or administrative amendments,

• non-controversial matters.

Characteristics:

• All MPs are members.

• Operates by agreement—no divisions allowed.

• Less debate → faster passage.

• Bills needing a vote return to the full House.

Senate’s superior role

• Efficiency

  • Senate Standing Committee for the Selection of Bills decides whether each bill

    • can pass quickly without extra scrutiny.

    • should go to a legislative committee for examination

• Less executive dominance

  • Governments rarely hold a majority in the Senate.

  • Crossbenchers and minor parties have significant influence.

  • Gags, guillotines, and flood gating are much rarer and harder to pass because government doesn’t hold a majority

• Powerful independent committees

  • More independent of the government.

  • Proportionally represent all parties.

  • Provide deeper scrutiny of legislation.

  • Allow public submissions and expert evidence.

• High level of negotiation and scrutiny

  • to pass contested bills, government must build temporary majorities

  • This requires negotiation, amendments, compromise with minor parties and Independents..

  Example: Ensuring Integrity Bill 2019 (Senate)

  • Government negotiated with Centre Alliance, Jacqui Lambie, and PHON and believed it had secured support after agreeing to amendments. At the final vote, PHON unexpectedly sided with the ALP and the bill was defeated.

  • Demonstrated how minor parties hold the balance of power in the senate and shows the limits of government control

• Better representation

  • More diverse membership (gender, background, age, party representation).

  • Proportional representation system elects minor parties and independents.

  • Crossbench influence ensures plural viewpoints are heard.

  • Stronger committee system with less government dominance.