Seminar Notes

LAWS1703 Week 5 Seminar 4
Parliament: Functions, Power, and Structure
Federalism vs federation – Federalism is an idea, federation is a form

The Australian constitution is infused with provisions that reveal ‘federalism’ as an essential
feature of the constitution
What is the idea of parliamentary sovereignty and where did it come from?
 Dicey – parliamentary sovereignty refers to parliament’s ability to make and unmake
laws
 Sovereignty comes from the word ‘Maiestas’ (Latin). The root word means
sovereignty, you have absolute power. Dicey says parliament has absolute power to
make and unmake any law. It can do whatever it wants.
UK’s Principles:
1. Parliament can enact any law on any subject matter it chooses
2. Parliament cannot bind a future Parliament
3. No Court can question the legal validity of an act of Parliament
To what extent can Australian Commonwealth and state parliaments said to be sovereign?
 A written constitution limits what the Federal Parliament can legislate with respect to
– principle one is undermined
 The State parliament is bound by the Federal Law, in that state law can’t be
inconsistent with federal law
 The High Court and Supreme Courts can and do question the legal validity of an Act
(undermines principle three)
In Australia, under a written constitution, Parliamentary sovereignty exists in a limited form
only
Federalism (parliament in both orders of gov) also restricts parliamentary supremacy
Although Parliament has a particular influence over the Executive, it is limited by the
judiciary
AUS’s Principles:
1. Parliament is bound by the constitution
2. Parliament cannot bind a future Parliament (except through “manner and form”)
3. The High Court can question the legal validity of an Act of Parliament
Can the Australian Parliament bind themselves – pass legislation that can’t be amended or
repealed through the ordinary legislation process?
 This requires manner (the procedure, the means by which the law comes into existence)
and form (the structure, formal requirements in the law so it can come into existence)
o This binds the parliament without explicitly prohibiting them from exercising
right to legislate within certain areas
o Manner and form provisions must be enacted according to the manner and form
they are prescribing – e.g., if you wish to require a referendum to change the law,
you must hold a referendum to entrench such a provision.
Queensland’s Legislative Council

 Abolished in 1922 due to deadlocks occurring with the first Labour Government
 Queensland had a legislative assembly, which was elected, and a legislative council,
which was appointed (a bicameral system)
 Labour desired to remove the legislative council
 Queensland held a referendum to attempt to remove the legislative council
 The Lieutenant Governor decided to appoint new members to the legislative council
(14 new members aligned with labour) – the intention of this was to abolish the
council. This way, the movement was passed in the lower house and the upper house.
 Royal Assent was given by the King, though other members of the upper house
requested against this movement
 The Legislative Council could only be reinstated through a referendum – any change
to the constitution of the state must be approved by a referendum. This is evident in
the constitution of QLD, the Acts Amendment Act (approved after the LC was
abolished; an example of a manner and form provision), and the Australia Acts
Parliamentary Structure
 Parliament according to section 1 of the constitution is the legislative power – it is
composed of the Queen (represented by the GG), a Senate, and a House of Reps,
which is called the Parliament, or the Parliament of the Commonwealth
 House of Representatives: front benchers and backbenchers; Senate: FB and BB
 Section 51 – the parliament shall, subject to this Constitution, have power to make
laws for the peace, order, and good government of the Commonwealth with respect
to...
o High Court has determined that when the Parliament legislates, it is always for
the P, O and GG – this is not a provision that can be used to challenge an
Act’s constitutionality
 All Commonwealth states and 2 territories have Parliaments
 House of Reps:
o Forms the government
o Decides matters of national interest
o Represents the interests of people in their electorates
o Propose, debate and vote on bills and amendments
o Examine issues in committees
o Scrutinise executive government
 House of Reps Members
o Government with the majority has ministers
o Front-benchers are ministers with the biggest portfolios, back-benchers are
those who support the majority government decisions but don’t talk too much
about anything
o The cross-bench are comprised of members who are not affiliated with either
the government or the opposition, and move according to their principles
o Section 24 – parliamentarians are ‘directly chosen by the people of the
Commonwealth’; the number of members is proportionate to the numbers of
their people; the number of house of reps members are twice the number of
senators
 Role of the Senate
o Involved in accountability of the government, scrutinises decisions of the
executive – but they don’t form the executive
o There was one PM who was a Senator – Senator Gordon. The PM before
unfortunately drowned.
o After this, Gordon was elected as a House of Reps member
o All other roles (beyond forming government) are shared w/ the HoR
o Senators represent interests of people in their state or territory
 Senate Members
o Section 7: directly chosen by the people of the state; until otherwise provided,
there shall be at least 6 senators for each original state. Parliament can make
laws increasing or diminishing number of senators for each state, but so that
equal representation of the several original states shall be maintained and that
no original state shall have less than six senators; the senators have a six-year
term
o Administrator of the Senate is not the speaker, but the President. Unlike the
speaker, they vote on bills. Due to equal representation, if one senator
becomes president and doesn’t vote, there is no longer equal representation in
voting process (one state may only have 5 votes)
o If there is a tie, the law passes in the negative
Territories having Senators

 Section 122 of the Australian Constitution authorises Parliament to provide elections for
representatives for the Territories
 Until 1973, only States were represented
 Whitlam tried to pass a Bill allowing 2 Senators from NT and ACT to sit in the upper
house
 This Act was rejected twice, brought about a deadlock and the double dissolution (which
brought about the Bill being passed)
Should a House of Review be able to bring down a popularly elected government?

 Section 57 allows for a double dissolution
 The Supply Bill during the constitutional crisis era kept being shut down by the
Senate. The government subsequently could not function, as their budget being
approved is necessary for government expenditure.
 Whitlam disagreed with the idea the Senate could block a money bill
 GG called for a new general election and appointed Fraser from the coalition to
approve the budget

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LAWS1703 Week 5 Seminar 4

Parliament: Functions, Power, and Structure

Federalism vs federation – Federalism is an idea, federation is a form

Queensland’s Legislative Council

Territories having Senators

Should a House of Review be able to bring down a popularly elected government?

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