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The Australian Constitution

The Commonwealth Constitution gives the Commonwealth Parliament of Australia the power to make laws about certain areas. Defence, immigration and telegraphic services are examples of subjects on which the Commonwealth has the power to enact laws. Road rules, the buying and selling of property and criminal laws in general, are examples of matters that are exclusively within the legislative power of the States. This is because these subject areas are not within the listed powers of the Commonwealth parliament. The Commonwealth Constitution is seen as the fundamental document of empowerment in the Australian political and legal systems.

Case law and legislation

The two principal sources of law in Australia are case law made by the courts and legislation made by parliaments. Prior to 1850, most parliaments were not very active in making laws. Cases were decided as they came to court and judges published their decisions, including the reason for the decision, in law reports. Other judges could consult these reports and use them as precedents for deciding their own cases. This is what is known as common law.

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Since the mid-nineteenth century, parliamentary laws (known as statutes or acts) have been made in increasing numbers. These statutes and acts (which are collectively known as legislation) overrule the common law if both are applicable to the same area.

Legislation

Before an item of legislation becomes a law, it exists as a bill proposed to parliament. A bill is a proposal for a new law, or a proposal to change an existing law.

Proposals for new legislation, or amendments to legislation, can come from many different sources, including the Cabinet of the government, members of opposition parties, or through suggested amendments to existing laws received from bodies like the Australian Law Reform Commission.

Making laws in Australia

The Westminster System

The parliaments in Australia are responsible for making laws. The Australian system is based on the process developed in England within what is called the Westminster System. In the Westminster System, the government (the executive branch) is composed of members of the parliament (legislature). Australia's State and federal parliaments usually operate on a bicameral system, which means that they have two houses. The State of Queensland, however, is an exception to the rule as it only has one house.

Houses of Parliament

Westminster Parliaments are divided into a lower house and an upper house. In Australia both houses are usually elected by the people. At a federal level, the lower house is known as the House of Representatives and the upper house is known as the Senate. In most cases, bills are introduced into the lower house of parliament. This is because the government usually has a majority in the lower house.

Bills

A bill is a proposal for a law or a change to the law. Proposals for new or amending legislation can come from many different sources. The Cabinet, which is the group of ministers directly responsible for the government's policies, might put forward a bill, or one of the government departments might suggest a bill to the relevant minister, who may then put the proposal before cabinet and the House.

Members of parliament from any party can present a bill proposing new laws or legislative amendments. These are known as Private Member's Bills. Other legal bodies such as law reform commissions or royal commissions can advocate for either new legislation for an area not adequately covered, or propose amendments to existing legislation. They cannot, however, actually introduce a bill to parliament.

The stages of a bill in parliament

The member who wishes to propose the new law or legislative amendment introduces the bill to the House. This is known as the first reading. Only the title of the bill is read at the first reading, and copies are distributed for members of parliament to read.

In the second stage, known as the second reading, the member who introduced the bill explains the purpose of, and reasoning for, the proposed law. At this stage, members of the House may ask for further explanation as to the effect of the bill, its costs and the administrative arrangements for the proposed law. Amendments to the bill can also be proposed at this stage. The members then vote on the bill, and if it is passed it proceeds to the third reading.

During the third reading the house is asked to vote on the bill. Once the bill is passed by the house in which it was introduced, it moves to the other house for consideration. Any amendments which have been made appear in the new version of the bill.

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The progress of the bill in the other house

In the other house, the bill goes through the three reading stages again. If the bill originates in the lower house and is amended by the upper house, the amendments then must be sent back to the House of Representatives for consideration. If the lower house does not agree to the amendments then the bill can be referred to the upper house, where the amendments can be reconsidered.

Assent

Once the bill has been passed by both houses it is presented to the State Governor or the Governor-General (for the Commonwealth). It is the responsibility of the Governor to assent to the new law, which means giving the Queen's seal of approval. Once a bill has been sent to the Governor it is usually a formality that it be approved. The bill becomes law on the date of the Governor's assent unless it has a specific clause stating it will only start on a specified date. Once it is law, the bill becomes an act or a statute.

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Acts of parliament

In general, acts of parliament command, prohibit, or declare policy on various matters. Parliament can also be responsible for the implementation of a broad range of official orders, regulations and rules across many organisations, institutions and areas of society. The political party that has the balance of power in parliament will usually succeed in passing its proposed legislation.


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