Parliament (VCE SSCE Legal Studies): Revision Notes
Parliament
Introduction to parliament in Australia
Australia has nine parliaments operating across the country. There is one federal parliament (Commonwealth Parliament), six state parliaments (one for each state), and two territory parliaments. Each parliament functions as the supreme law-making body within its designated area of authority.
The primary function of any parliament is to create laws. Each parliament has the power to make or change laws, but only within its specific jurisdiction and subject to certain constitutional restrictions. The laws created by parliaments are called statute law, which is also known as Acts of Parliament or legislation.
This note focuses on the Commonwealth Parliament and the Victorian Parliament, examining their structure, composition, and how they create laws for their respective jurisdictions.
Commonwealth Parliament
Structure and composition
The Commonwealth Parliament operates as a bicameral parliament, meaning it consists of two separate houses or chambers. This system was designed to prevent any single group from holding too much law-making power. The Commonwealth Parliament comprises three key components:
- The Crown - represented by the Governor-General, who is the King's representative at the federal level
- The House of Representatives - the lower house
- The Senate - the upper house
The Commonwealth Parliament's role is to pass laws that ensure good governance across Australia in areas where it has constitutional authority. These areas include migration policy, defence matters, national currency, and taxation.
House of Representatives
The House of Representatives serves as the lower house of the Commonwealth Parliament. Australia is divided into geographic areas called electoral divisions for the purpose of electing representatives. Each division contains approximately the same number of eligible voters to ensure fair representation.
Voters in each division elect one representative to sit in the House of Representatives. As of 2023, there are 151 electoral divisions across Australia, which means 151 members serve in the House of Representatives. All members are elected for a maximum term of three years, after which a federal election must be held.
Voting in these elections is compulsory for all eligible Australian citizens.
The House of Representatives performs several critical roles:
Forming government: The political party (an organisation representing people with shared values and ideas) that wins the majority of seats in the lower house forms the government. This government has the authority to govern and implement policies. The leader of the winning party becomes the Prime Minister. Sometimes, two parties join together to form a coalition government - for example, the Liberal Party and National Party have historically formed coalition governments at the federal level. The party with the second-largest number of seats becomes the opposition, which questions the government's policies and holds it accountable.
Representing the people: Members elected to the House of Representatives carry the responsibility of representing their constituents' interests when debating issues and making laws. Any proposed laws should reflect the views and values of the majority of Australians.
Introducing and passing bills: A bill is a proposed law presented to parliament. The vast majority of bills are introduced by the government in the House of Representatives, though technically any member of parliament can introduce one. Bills must proceed through specific stages before becoming law.
Reviewing Senate bills: While most bills originate in the House of Representatives, the Senate can also introduce bills. When this happens, the House of Representatives acts as the 'second house' to review and vote on these proposals.
Senate
The Senate functions as the upper house of the Commonwealth Parliament and consists of 76 elected members called senators. Representation in the Senate is structured differently from the House of Representatives to ensure equal state representation:
- Each of the six states has 12 senators (72 senators total)
- Each of the two mainland territories has 2 senators (4 senators total)
Senators from the states serve six-year terms, while territory senators serve three-year terms. Elections for the Senate operate on a rotating basis - a half-Senate election occurs every three years, during which only half of the senators face re-election.
The Senate performs several important functions:
Reviewing bills: The Senate's most crucial role is reviewing bills that have been introduced and passed by the House of Representatives. Because most bills originate in the lower house, the Senate provides an essential 'check' on proposed legislation. Senators scrutinise bills through detailed examination and debate, then vote either to reject or pass them. This reviewing function has earned the Senate its nickname as the house of review.
Ensuring equal state representation: Because every state has the same number of senators regardless of population size, the Senate can represent all states' interests equally. This balancing role gives the Senate another nickname: the states' house. This ensures that smaller states have an equal voice to larger states in the legislative process.
The equal representation of states in the Senate is a fundamental principle of Australian federalism, ensuring that smaller states like Tasmania have the same number of senators as larger states like New South Wales.
Introducing and passing bills: Although less common, the Senate can introduce bills. However, it cannot introduce bills that generate revenue (such as through taxation) or allocate government spending - these must originate in the House of Representatives.
Victorian Parliament
Structure and composition
The Victorian Parliament (also called the Parliament of Victoria) follows a similar bicameral structure to the Commonwealth Parliament. It consists of:
- The Crown - represented by the Governor of Victoria, who is the King's representative at the state level
- The Legislative Assembly - the lower house
- The Legislative Council - the upper house
The Victorian Parliament's role is to pass laws for the good governance of Victoria within its areas of law-making power. This includes areas such as health services, education, roads and transport infrastructure, and criminal law matters.
Legislative Assembly
The Legislative Assembly is the lower house of the Victorian Parliament. Victoria is divided into 88 electoral districts for election purposes. Each district elects one member to represent it in the Legislative Assembly, resulting in 88 members total. Members of the Legislative Assembly serve fixed four-year terms.
The Legislative Assembly performs roles similar to the House of Representatives at the federal level:
Forming government: The political party that wins the majority of seats in the Legislative Assembly forms the Victorian government. The leader of this party becomes the Premier of Victoria, who is the state equivalent of the Prime Minister.
Representing the people: Members of the Legislative Assembly represent the interests of people in their electoral district. They must consider their constituents' views when debating matters and creating laws. If they fail to represent their district effectively, they risk losing their seat at the next election.
Introducing and passing bills: Like the federal lower house, the vast majority of bills are introduced by the government in the Legislative Assembly.
Reviewing Legislative Council bills: When bills are introduced and passed by the Legislative Council, the Legislative Assembly acts as the house of review.
Study tip: Students often confuse the names of Victoria's parliamentary houses. Remember that 'A' comes before 'C' in the alphabet - the Legislative Assembly is the first (lower) house, and the Legislative Council is the second (upper) house.
Legislative Council
The Legislative Council is the upper house of the Victorian Parliament. Victoria is divided into eight regions for the purpose of electing members to the Legislative Council. Each region consists of 11 districts, and five members are elected from each region. This results in 40 members of the Legislative Council. Members serve four-year terms.
The Legislative Council's main roles include:
Reviewing bills: Like the Senate at federal level, the Legislative Council's primary function is reviewing bills passed by the Legislative Assembly. The Council scrutinises and debates bills, then votes to either reject or pass them. This checking function is vital for ensuring laws are properly considered.
Introducing and passing bills: The Legislative Council can introduce bills, though this is less common than in the lower house.
Government and opposition
Understanding the difference between government and parliament is crucial for legal studies students.
Government is formed by the political party (or coalition of parties) that wins the majority of seats in the lower house of parliament. Once formed, the head of government (Prime Minister at federal level, Premier at state level) selects senior elected members from their party to serve as ministers. Ministers are assigned responsibility for specific areas of government called 'portfolios', such as education, health, or transport.
The senior group of ministers forms the Cabinet, which makes key decisions about government policy and determines which bills should be presented to parliament. At the federal level, Cabinet consists of the Prime Minister and senior ministers. At the state level, it comprises the Premier and senior ministers.
The opposition is formed by the political party with the second-largest number of seats in the lower house. The opposition's role is to challenge and question the government on policy matters. Opposition members appoint 'shadow ministers' who specialise in specific portfolio areas and hold the corresponding government ministers accountable.
Parliament, in contrast, consists of all elected members from both the upper and lower houses, plus the King's representative. While government develops policy and decides which bills to introduce, parliament's main role is to actually make laws by voting on bills. Government implements and enforces laws, while parliament creates them.
Statute law
The supremacy of parliament
Parliament's main function is creating law. Laws made by parliament are called statute law, Acts of Parliament, or legislation. Australia's parliamentary system operates on the principle of supremacy of parliament (also called sovereignty of parliament). This principle means that parliament holds the final law-making power and can:
- Override laws made by other bodies, including courts
- Repeal (cancel) its own previous statutes
- Amend (change) existing legislation
- Pass legislation that overrides common law (judge-made law)
The supremacy of parliament ensures that elected representatives have ultimate authority over law-making. This means parliament has the power to make or unmake any law, and no other body can override parliamentary legislation.
The legislative process
While the government generally decides what laws should be made, the entire parliament is responsible for passing laws. When the government decides a law is needed, a bill (proposed law) is drafted and presented to parliament.
Before a bill can become law, it must pass through both houses of parliament. It goes through several stages in each house and must receive a majority vote from members of each house. Most bills are introduced in the lower house first because most government ministers (who introduce most bills) are members of the lower house.
The stages of the legislative process:
1. Introduction and first reading: The bill is introduced to the first house (usually the lower house)
2. Second reading: The bill's purpose is explained, debated, and voted on. In Victoria, the bill is also assessed for compatibility with the Victorian Charter of Human Rights and Responsibilities
3. Committee stage/consideration in detail: The bill is examined clause by clause in detail. Amendments (changes) to the bill are most likely to occur at this stage
4. Third reading: The bill is voted on in its final form
5. Passage to second house: If the bill passes the first house, it proceeds to the second house where it goes through the same stages
6. Royal assent: Once passed by both houses, the bill is presented to the King's representative (Governor-General at federal level, Governor at state level) for formal approval. Royal assent is the formal signing and approval that transforms a bill into an Act of Parliament
7. Proclamation: The Act comes into operation and becomes enforceable law
Bills that are introduced in the upper house follow the same process, with the lower house acting as the second house for review.
Private members' bills
Individual members of parliament who are not part of the government can introduce bills, known as private members' bills. However, these bills rarely become law because the government holds the majority of votes in the lower house and will typically vote against bills that lack government support.
Subordinate authorities
Parliament, while being the supreme law-maker, cannot create all the detailed laws needed to maintain social order. Therefore, state and Commonwealth parliaments can delegate their law-making powers to subordinate authorities. These authorities create minor laws in their areas of expertise.
Examples include:
- Local councils making laws about pet ownership, rubbish removal, and parking
- VicRoads making laws about roads and traffic regulations
Laws made by subordinate authorities are called secondary legislation or delegated legislation. This system allows for more efficient and specialised law-making on detailed matters.
Remember!
Key Points to Remember:
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Parliament is the supreme law-making body - it creates statute law (also called Acts of Parliament or legislation) and has the final say in law-making through the supremacy of parliament principle
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Australia has a bicameral parliamentary system - both Commonwealth and Victorian Parliaments have two houses (lower and upper) to prevent too much power being concentrated in one group
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The lower house forms government - the political party with the majority of seats in the lower house (House of Representatives federally, Legislative Assembly in Victoria) forms government, while the second-largest party becomes the opposition
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Both houses must pass a bill - for a proposed law (bill) to become an Act of Parliament, it must pass through both houses and receive royal assent from the King's representative
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Government and parliament are different - government is the ruling authority formed by the majority party in the lower house, while parliament consists of all elected members from both houses plus the King's representative; government proposes and implements laws, while parliament creates them