Transcript Year 12 Legal Studies 2015 - Pembroke School, Adelaide

Year 12 Legal Studies 2015
Topic 3 – Law Making
Chapter 9 - Legislation
Law-making
• A study of this topic develops an appreciation
that law originates from two fundamental
sources — parliament and the courts — but that
parliament can delegate some law-making
powers to the executive. Parliament is the
sovereign law-maker.
• However, courts can make and extend law in the
absence of statute law. This is called common
law. Courts can also create case law through
statutory interpretation.
Legislative constraints
• The legislative arm of government makes laws
and is restricted in its law-making by two
factors:
– Constitutional (subject to the legislative division of
powers)
– Democratic (public pressures and party disciplines)
Law making by Parliament - legislation
https://www.youtube.com/watch?v=NhYpkVclXbA
Initiation of Legislation
1. Political parties = Each party has beliefs and values
which are reflected in its legislative program (e.g.
ALP introducing the mining tax, NDIS, Gonsky)
2. Electoral mandate = party wins an election over a
legislative issue (introduction of a Goods & Services
Tax in 1998) https://www.youtube.com/watch?v=S-DrA4gnuFA
3. Pressure groups = Trade Unions, Australian
Conservation Foundation, pensioner groups (Grey
power), Business, Youth (Q & A), Get up
https://www.getup.org.au/campaigns
Initiation of Legislation
4. Public service = Eg: Advice from various
government departments – tax, welfare, foreign
affairs
5. Investigative committees = set purpose is to
recommend legislation (currently over MurrayDarling system, substance abuse in central Australia,
national broadband network, cyber bullying, child
abuse)
6. Court decisions = Parliament scrutinises judicial
arm (e.g. Native Title Act (Cth) after Mabo, Wrongs
Act (SA) after SGIC v Trigwell)
Types of Bills
• A bill is a proposed new law
• An act is a law made by parliament – also
referred to as legislation or statute
• Public bills are part of the government’s
legislative program and policies – eg. NDIS,
Gonski, Mining tax
• The relevant Minister is responsible for its
passage and members vote along party lines
• There are two types of public bills
a) Ordinary bills (originate in either house) –
original, amending, repealing, consolidating
b) Supply bills (must originate in Lower House – s.
53)
Types of Bills
• Private members bills are initiated by an
individual member (backbencher, Opposition
or Minister acting as a private member)
• Parliament holds a conscience vote on these
(abortion, prostitution, euthanasia)
• Private members bills may not impose a tax
nor take money from govt revenues
Types of Bills
Go to this web site
Bills currently before parliament
http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_before
_parliament
For two bills:
1. What is the name of the bill and the date it was initiated?
2. Describe what the bill is attempting to legislate for?
3. Who is the MP that initiated the bill?
4. Which chamber was the bill introduced?
5. Which house is the bill currently before?
6. Referring to the information above and pages 117 and 118 of your text, what type
of bill is it?
Voting on bills in parliament
• On-the-voices
– Most common way of agreeing to motions and
other decisions
– Speaker or President says ‘all those in favour of the
bill say “Aye” all those against say “no”’
– Most uncontroversial
motions are passed in both
Houses.
– Supporters and opponents
not published in Hansard
Voting on bills in parliament
• Division
• Formal vote where the names of the members are
recorded in Hansard
• Called when at least two members challenge the
presiding officer’s on the voices ruling
– Can vote:
• Political party lines
• Conscience vote
Making legislation – pre-parliament stage
• Initiation of the legislation
• Cabinet approval (agree “in principle” to the idea)
• Drafting of the bill (done by Office of Parliamentary
Counsel) and is overseen by the relevant Minister
responsible for the Bill
Making legislation – Parliament Stage
• Bills generally originate in the Lower House (as most Ministers reside
there) and each member receives a copy before the readings begin
• First reading (initiation) (by Clerk) (possibly referred to a standing
committee for a report)
• Second reading (Minister’s speech outlining broad principles)
• Consideration of the bill = debate (every clause may be debated)
• Third reading (long title read by Clerk)
• Send approved Bill (transmission) to the Senate
Making legislation – Parliament stage
• In the Reviewing House (Senate)
• First reading
• Second reading (can be referred to Senate committee)
• Committee of the Whole (debate amendments)
• Third reading
• If any amendments the originating house must pass the amended bill
• Assent (for Cwth bills by Governor-General under s.58 – in South Aust
assent is post-parliament as SA constitution excludes Governor)
Making legislation – Post-parliament stage
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(SA Governor assents)
Proclamation by G-G - in Government Gazette
Act becomes part of the “law of the land”
Can come into operation from date of assent, date of
proclamation or a date prescribed –e eg. new speed
limits, licensing requirements, allow time for public
information
How the senate works
https://www.youtube.com/watch?v=DFOU1F5Cmpg
Seinfeld and parliament
https://www.youtube.com/watch?v=fuDTMmxGStE
Resolving deadlocks in state parliament
• Bills must pass through both Houses
• Government rarely have the majority in both houses and
often face a hostile Upper House
• Deadlocks are when the two houses cannot agree on a bill
(disagreement is where there may be room to compromise)
and may be resolved by;
– Abandoning the bill
– Manager’s conference = 5 member’s from each House
(representing all parties) meet in a conference to find a
compromise
– Double dissolution = no joint sitting provision so not a
particularly viable solution
Resolving deadlocks in federal parliament
Deadlocks/disagreements may be resolved by;
– Abandoning the bill
– Compromise (Govt and Senate make concessions
e.g Govt and Opposition, stimulus package $950
down to $900 per person) or concession (let
Senate amendments through)
– Double dissolution mechanism = under s57 of the
constitution
– This was used in the Medibank legislation for the
Whitlam govt in 1974
Section 57 Double Dissolution
1. House of Reps pass a bill
and Senate rejects
2. The House of Reps passes
again after a three month
lapse
3. The Senate rejects again
4. PM can advise GG to call a
double dissolution election
under s57
https://www.youtube.com/watch?v=
-ptjwJxHauI
• If govt loses, bill lapses
• If govt wins a double
majority, then bill will pass
• If govt wins but not a
Senate majority…
5. Bill passes H of R again and
Senate again rejects
6. PM advises GG to call a joint
sitting (held in H of R)
7. If absolute majority (of the
226) passes the bill passes
and becomes law
Section 64 Reserve Powers
• One final way (and dramatic) method of resolving a deadlock
is the use of the G-G’s reserve powers under s64
• If a supply bill is blocked the govt can’t wait three months for
a s57 Double Dissolution
• There is nothing in the Constitution about the blocking of a
supply bill as drafters never believed it would happen (a
convention!)
• But it did. In 1975 the Liberal Opposition under Malcolm
Fraser blocked the supply bills of the Whitlam govt
• G-G Sir John Kerr sacked Whitlam and his govt for failure to
pass the bills and called a DD election
• This constitutional crisis outraged many, but Fraser won in a
land slide
• Still today the GG could sack the PM as it remains only a
convention not to.
Supervision of legislation – Parliamentary
supervision
• Bicameral scrutiny – Senate scrutinizes bills
• Parliamentary Committee system – standing committees on
finance, constitutional affairs, education and other specific
purpose committees set up to inquire and report into
legislative matters Parliament of Australia: Committees
• Sunset provision – guarantees an Act will be reviewed after a
certain number of years (In 2005 the Anti-terrorism laws were
given a 5 year sunset clause) – useful for areas of science and
technology developments
• Question Time – questions, tabling of petitions from
concerned citizens
Supervision of legislation – Executive supervision
• Responsible Government – Ministers are accountable to
parliament for the effectiveness of their legislation
• Administrative tribunals – hear cases of admin decisions of
government – may expose problems in relevant laws
• Ombudsman – investigate complaints regarding decisions of
government authorities
• Freedom of Information (FOI) – access to government files of
admin nature or personal files of the individual concerned
– Freedom of Information Act 1982 (Cwth)
– Freedom of Information Act 1991 (SA)
Supervision of legislation – Judicial supervision
• Judicial review – constitutional validity of laws
can be challenged in High Court (ultra vires)
• Statutory Interpretation – courts give the
meaning to words. For example “self defence”
under the Criminal Law Consolidation Act
1935 (SA)
https://www.youtube.com/watch?v=MCukSOqCH6U
Strengths of legislation
Page 196
• Representative government principles
• Responsible government principles
• Sovereignty of parliament
• Comprehensive law-making
• Sets acceptable standards in futuro
• Federal perspective
Weaknesses of legislation
Page 198
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Minorities disenfranchised
Time consuming
Retrospective law-making
Federal perspective (buck passing)
Upper House can hold Lower House to ransom
(minor parties or independents may deny the
mandate of government)
• Fear of electoral backlash
Possible reforms to the law-making process
• Abolish bicameral system – Queensland model
• More conscience votes rather than on party
lines – eg. same-sex marriage, euthanasia
• Reduce readings of Bills
• Allow citizen initiated legislation
• Remove double dissolution stage – straight to
a joint sitting after two rejections