The Bicameral Structure of Parliament (VCE SSCE Legal Studies): Revision Notes
The bicameral structure of parliament
Introduction to the bicameral structure
Parliament (also called the legislature) is the supreme law-making body in Australia. Its primary role is to make and change laws. While parliament is generally effective at law-making, several factors can affect its ability to make law. One crucial factor is the bicameral structure of parliament.
A bicameral parliament is a parliament with two houses (also called chambers). The term comes from "bi" (two) and "camera" (chamber), meaning a legislature divided into two separate assemblies that must both approve legislation.
Both the Commonwealth Parliament and the Victorian Parliament have this bicameral structure:
- Commonwealth Parliament: Senate (upper house) and House of Representatives (lower house)
- Victorian Parliament: Legislative Council (upper house) and Legislative Assembly (lower house)
Constitutional basis for bicameralism
The requirement for both parliaments to be bicameral is set out in their respective constitutions.
Commonwealth Parliament
Section 1 of the Australian Constitution states:
"The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives..."
Victorian Parliament
Section 15 of the Constitution Act 1975 (Vic) states:
"The legislative power of the State of Victoria shall be vested in a Parliament, which shall consist of Her Majesty, the Council, and the Assembly, to be known as the Parliament of Victoria."
The bicameral structure is not just a matter of tradition or practice - it is a constitutional requirement for both Commonwealth and Victorian parliaments. This means it cannot be changed without amending the constitution itself.
How the bicameral structure works
A bill (a proposed law) must be passed in identical form by a majority of members in both houses before it can become law. This requirement creates a form of 'quality control' in two ways:
- Double-checking: The second house reviews the bill and may suggest amendments to improve it
- Preventing misuse of power: The second house acts as a check to ensure the other house does not misuse its law-making power
This two-house requirement can both enable and limit parliament's ability to make law, depending on the composition of the upper house and the law-making processes in place.
The composition of the upper house
The political party (or coalition of parties) with the majority of seats in the lower house forms government. Most bills are introduced in the lower house, which makes the composition of the upper house particularly important in the law-making process.
No government majority in the upper house (hostile upper house)
When the government does not hold the majority of seats in the upper house, this situation is sometimes called a hostile upper house. In this scenario:
- The governing party holds some seats
- The opposition holds other seats
- The remaining seats are held by minor parties and independents (collectively known as crossbenchers)
The balance of power is typically held by crossbenchers, meaning the government needs their support (or the opposition's support) to pass bills.
Example: Commonwealth Parliament (June 2023)
After the 2022 federal election, the Australian Labor Party (ALP) formed government but did not have a majority in the Senate:
| Party/Group | Number of Senators |
|---|---|
| Government (ALP) | 26 |
| Opposition (Liberal, Nationals, Country Liberal Party) | 31 |
| Australian Greens | 11 |
| Jacqui Lambie Network | 2 |
| Pauline Hanson's One Nation | 2 |
| United Australia Party | 1 |
| Independents | 3 |
With only 26 of the 76 senators, the ALP government needed at least 13 additional votes from crossbenchers or opposition to pass legislation (requiring 39 votes for a majority).
Advantages of no government majority:
Enhanced scrutiny and representation:
- Enhanced scrutiny: The government must consider a wider range of views, potentially leading to better legislation that reflects community interests
- More thorough debate: Bills receive more rigorous examination and may be amended to address concerns
- Increased representation: Minor parties and independents can bring diverse perspectives to the law-making process
Disadvantages of no government majority:
Potential for disproportionate influence:
- Disproportionate power: Crossbenchers may hold more influence than their voter base warrants, as they can negotiate directly with government or vote with opposition to block bills
- Narrow policy focus: Minor parties and independents may focus on specific issues without having comprehensive policy platforms
- Obstruction of law reform: The government may struggle to implement its legislative agenda if crossbenchers block or demand significant changes to bills
Case Study: Marathon debate in the Legislative Council (2021)
In November 2021, the Victorian ALP Government introduced the Public Health and Wellbeing Amendment (Pandemic Management) Bill 2021 (Vic) to manage the COVID-19 pandemic. Without a majority in the Legislative Council, the government engaged in a 21-hour marathon debate.
The government negotiated with crossbench MPs, including Rod Barton of the Transport Matters Party, to secure the four crossbench votes needed to pass the bill. Key amendments included:
- Establishing an independent panel to review detention orders during a pandemic
- Creating a joint parliamentary committee to review public health orders
The opposition's 18 proposed amendments were rejected. This scenario demonstrates how crossbenchers can force governments to modify legislation, but also raises questions about whether small groups should wield such significant influence.
Government majority in the upper house (rubber stamp)
When the government holds a majority in both houses, the upper house can become a rubber stamp - simply confirming decisions made in the lower house. This occurs because members typically vote along party lines (according to their party's directives).
Advantages of government majority:
Efficient implementation of policy:
- Efficient law-making: The government can pass its legislative program quickly without obstruction
- Clear implementation of policy: The elected government can implement the policies voters supported
Disadvantages of government majority:
Reduced scrutiny and accountability:
- Reduced scrutiny: Bills may not receive adequate debate or review in the upper house
- Limited representation: The upper house fails to properly represent broader community interests beyond the government's agenda
- Rejection of private member bills: Bills introduced by private members (MPs who are not government ministers) may be rejected without proper debate
Case Study: WorkChoices reform (2005)
Following the 2004 federal election, the Howard Government (Liberal-National Coalition) won 39 seats in the Senate, giving it a majority in both houses. This was only the second time since 1981 that a Commonwealth government controlled the Senate.
In 2005, the government passed the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which:
- Increased employer flexibility in employment terms and conditions
- Made it more difficult for unions to make unfair dismissal claims
- Removed unfair dismissal protections for workers in businesses with fewer than 100 employees
Despite strong opposition from unions and welfare groups, the legislation passed because the government controlled the Senate. Critics argued that workers' rights were undermined, particularly for low-income earners in small businesses.
The WorkChoices laws became a major issue in the 2007 federal election, with the ALP and unions running a "Your Rights at Work" campaign. Many experts believe WorkChoices contributed to the Coalition's election loss. This demonstrates how a rubber stamp parliament can enable controversial legislation, but the government remains accountable to voters.
The parliamentary law-making process
The bicameral structure means bills must pass through multiple stages in both houses before becoming law. While this process ensures thorough scrutiny, it can also affect the speed of law-making.
Stages of a bill
Bills typically follow these stages in each house:
In the House of Representatives/Legislative Assembly (first house):
- First reading: The bill is introduced (formal presentation)
- Second reading: Members debate the main idea of the bill and vote on whether to continue
- House committee (optional): Public inquiry into the bill, with a report back to the house
- Consideration in detail: Members discuss the bill in detail, including any proposed changes
- Third reading: Members vote on the bill in its final form
- Bill passed: If successful, the bill is sent to the second house
In the Senate/Legislative Council (second house):
- First reading: The bill is introduced
- Second reading: Senators debate and vote on the main idea
- Senate committee (optional): Public inquiry and report
- Committee of the whole: Senators discuss the bill in detail and vote on any changes
- Third reading: Senators vote on the final form
- Bill passed: If successful, the bill proceeds to royal assent
Final stage:
- Royal assent: The Governor-General (Commonwealth) or Governor (Victoria) signs the bill
- Bill becomes an Act of Parliament: The bill is now law
Understanding the process:
Each stage serves a specific purpose in ensuring legislation is properly scrutinized. The first reading is purely procedural, the second reading allows debate on the bill's general principles, consideration in detail/committee of the whole examines specific clauses, and the third reading provides a final opportunity to vote on the complete bill.
Impact on law-making ability
How the process enables effective law-making:
The detailed parliamentary process provides several advantages for creating quality legislation:
- Multiple opportunities for scrutiny: Each stage allows members to examine, debate, and improve the bill
- Quality control: The detailed process helps identify problems and improve legislation
- Flexibility when needed: Parliament can act swiftly in emergencies, as demonstrated during the COVID-19 pandemic
Case Study: Victorian Parliament judge-only trials (2020)
During the COVID-19 pandemic, social distancing restrictions affected court operations. In April 2020, the Victorian Parliament passed the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic) in just one day.
The legislation temporarily allowed judge-only criminal trials in the County and Supreme Courts (with the accused's consent and prosecution consultation) to ensure courts could continue operating during the pandemic. The bill included a sunset clause, meaning it expired after six months.
This demonstrates parliament's ability to pass legislation rapidly when necessary, showing that the bicameral structure does not always slow down urgent law reform.
How the process can limit law-making:
While the process ensures quality, it can also create delays:
- Time-consuming stages: Multiple readings, debates, and committee processes can slow the passage of bills
- Lengthy debates on controversial bills: Bills that raise significant concerns may face extended debate and negotiation
- Multiple opportunities for opposition: The process provides many chances for bills to be amended or rejected
The time taken depends on the bill's nature. Non-controversial bills often pass quickly through all stages, while controversial bills naturally require more thorough debate and consideration.
Sitting days
Parliament does not sit every day or every week, which affects how quickly laws can be made.
2022 sitting days:
- Commonwealth Parliament: House of Representatives sat for 64 days; Senate sat for 51 days
- Victorian Parliament: Legislative Assembly sat for approximately 40 days (reduced due to November election)
- Average since 1901: The House of Representatives has sat approximately 67 days per year
Why sitting days are limited:
Balancing responsibilities:
Parliament sits for limited days each year to allow members to fulfill other important responsibilities:
- Community engagement: Members need time in their electorates to understand constituents' needs and concerns
- Committee work: Parliamentary committees (small groups of MPs who examine specific issues) continue working between sitting days, holding public hearings and meetings
- Administrative duties: Members have other responsibilities beyond debating legislation in the chamber
Impact on law-making:
The limited sitting days have been criticized as reducing opportunities to pass essential legislation. However, parliaments use strategies to maximize effectiveness:
- Committee systems: Allow detailed examination of legislation without requiring full parliamentary debates
- Secondary legislation: Parliament delegates law-making power to bodies like local councils and government departments for technical regulations and rules that need frequent updates
- Efficient prioritization: Parliament focuses on significant legislation during sitting days
Despite limited sitting days, parliaments pass substantial numbers of bills each year (approximately 200 bills annually in the Commonwealth Parliament), demonstrating that the system generally works effectively.
How the bicameral structure affects parliament's ability to make law
The bicameral structure creates both opportunities and challenges for effective law-making.
Factors that enable effective law-making
Quality control through two houses:
The requirement for two houses to pass bills creates a built-in review mechanism. The second house can:
- Identify errors or problems in bills
- Suggest improvements through amendments
- Prevent misuse of law-making power by checking the first house's work
Increased scrutiny when no government majority exists:
When the government lacks an upper house majority, the bicameral structure forces:
- More thorough debate and consideration of bills
- Incorporation of diverse perspectives from crossbenchers
- Greater likelihood that legislation reflects broader community interests
Flexibility to act swiftly when necessary:
Despite the detailed process, parliament can pass urgent legislation quickly when required, as demonstrated during the COVID-19 pandemic when both Commonwealth and Victorian parliaments rapidly passed emergency measures.
Factors that limit effective law-making
Rubber stamping when government controls both houses:
When the government has a majority in both houses:
- The upper house may simply confirm lower house decisions without proper scrutiny
- Bills may pass without adequate debate or consideration
- The review function of the upper house is diminished
Disproportionate influence of crossbenchers:
When crossbenchers hold the balance of power:
- Small groups may wield influence disproportionate to their electoral support
- Crossbenchers may focus on narrow policy areas rather than comprehensive platforms
- Questions arise about whether they truly represent majority community views
Time-consuming processes:
The multiple stages and debate opportunities in the bicameral system can:
- Slow down the passage of legislation
- Create delays in implementing necessary law reform
- Result in bills taking months or even years to pass (though this depends on the bill's controversy)
Limited sitting days:
The relatively few days parliament sits each year can:
- Reduce opportunities to debate and pass legislation
- Delay urgent law reform
- Create bottlenecks in the legislative program
However, this is partially offset by committee work, secondary legislation, and parliament's ability to prioritize effectively.
Remember!
Key points:
- Bicameral structure means parliament has two houses: both Commonwealth and Victorian parliaments are bicameral by constitutional requirement
- Bills must pass both houses in identical form to become law, creating a quality control mechanism
- The composition of the upper house significantly affects law-making: when government lacks a majority, crossbenchers hold the balance of power; when government has a majority, the upper house may become a rubber stamp
- The law-making process involves multiple stages (readings, debates, committee reviews) in both houses, which ensures scrutiny but can slow legislation
- Parliament sits for relatively few days each year (approximately 60-70 days for Commonwealth, 40 days for Victorian), but continues law-making work through committees and can act swiftly when necessary
- The bicameral structure both enables and limits parliament's law-making ability, depending on political composition and circumstances
Key terms to remember:
- Legislature: The body with primary law-making power (parliament)
- Bill: A proposed law presented to parliament
- Bicameral parliament: A parliament with two houses/chambers
- Coalition: An alliance of political parties, usually to form government
- Crossbenchers: Independent members and members of minor parties who sit between government and opposition
- Balance of power: A situation where crossbenchers hold the deciding votes
- Hostile upper house: Upper house where government lacks a majority
- Rubber stamp: Upper house that automatically approves government decisions
- Parliamentary committee: Small group of MPs examining specific issues
- Secondary legislation: Rules and regulations made by bodies given power by parliament
Exam tips:
- When discussing the bicameral structure, always consider both advantages and disadvantages - examiners want balanced analysis
- Use specific examples like WorkChoices or the Victorian pandemic legislation to illustrate your points
- Remember that the impact varies depending on upper house composition: no government majority creates scrutiny but potential obstruction; government majority enables swift passage but reduces review
- Link bicameral structure to the principle of responsible government - parliament is accountable to voters, even when it has a rubber stamp upper house
- Consider contemporary examples of how the current composition of the Senate or Legislative Council affects law-making