LAWS1115 Lecture 7

Legislative Power in a Federation

Legislative power: the formal view

  • Parliament makes the law
  • Legislation (ideally) should be:
    • General
    • Prospective
      • Isn’t specified in the Constitution. This allows for more flexibility.
    • Rules for future conduct, affairs
      • Affairs = Not directed at individual citizens or companies about their rights and slash or responsibilities(not about what citizens can slash can’t do.)
    • Subject to Constitution
  • Constitution not thick (no BoR)
  • Thin constitutionalism?
  • Procedure mostly left to parliamentary standing orders.
  • Bills require ‘royal assent’ (ie. G-G’s signature)

Legislative power and other branches

  • No strict separation of legislative power from other powers
    • Parliament can delegate ‘subordinate legislation’ (eg. rules of Court, Regulations, council by-laws), eg to:
      • Ministers/Executive council
      • Commissions/Agencies
  • eg. Fair Work Australia – awards
  • eg. ATO ‘Private tax ruling’ and ‘public tax ruling’
    • And it’s a ‘fairy tale’ that judges don’t ‘make law’
  • What distinguishes parliamentary law-making then?
    • Process – open debate, deliberation
    • Representativeness – elected MPs
    • Inherently political.

Parliament as a body

  • Legislatures’ primary roles, in order of actual importance:
    • Responsible government: question time, committees, executive reporting to parliament.
    • Forum for debate, grievances. Site for public petitions, protests, media interest.
    • Approve, disapprove legislative agenda driven/crafted by executive government (ministers, bureaucracy)

The Constitution and Federal aspects of legislative power

  • s 51 of the Constitution enumerates the powers of the Federal Parliament the areas in which they may legislate
    • Skim over s 51 (link on PPT)
    • Note how most Cth powers are in theory shaped with stated
    • But centralism has crept in with:
      • Broad High Court interpretation of Cth powers
        • eg. Work Choices case (2006)
      • Cth law can crowd out states
        • Implicitly necessary (eg. defence, external affairs)
        • Practically (eg. income tax)
      • Cth fiscal power: the piper payer calls the tune – around 80% of the taxation goes to the Commonwealth, so it has financial power. [See weeks 10-11].
  • s 109 – a valid Cth law trumps an otherwise valid state law if the two are inconsistent.

State Legislative Powers

  • Not enumerated (cf Cth)
  • Inherited from Westminster
    • Parliamentary sovereignty
    • Plenary powers for ‘peace, welfare and good government’
      • This is not independently reviewed. Any law passed by the Parliament is usually for the ‘peace, welfare and good government’ unless it can be otherwise proven.
    • Historically subject to imperial law
  • State constitutions not entrenched
    • Various Acts and other documents
    • Subject to ‘manner and form’ requirements
    • eg. Constitution Act 1867 ss 2A and 53, which attempt to entrench actions of the past, assuming that the Courts say that these sections of the Constitution are valid.
    • Can State parliament legally impose referendum requirement without referendum?

Flexibility of State constitutions

  • ‘Flexible’ constitution = readily amendable
    • State constitutions largely amendable by majority vote in State parliament
  • Compare rule about disqualification to be an MP because one holds a public office or job.
    • Australian Constitution s 44(iv)
    • Parliament of Queensland Act 2001 s 67
  • Compare rule about disqualification to be a rep because one holds a public office or job
    • Commonwealth Constitution – s 44. ‘Any office of profit under the Crown’ – unclear what this means.
    • Parliament of Queensland Act 2001 – s 67. Flexible constitution make it clear that one must resign if they, if they stand they are taken to have resigned.

Legislative power – Executive dominance

  • Executive (Ministers, bureaucracy) have the resources to develop holistic policy and legislation
  • Much of detail of legislation is delegated (eg. to Ministerial regulations
  • Party and Cabinet discipline
    • Government —> numbers on floor of lower house
    • Media and leadership fetish —> tight party discipline
  • Will a ‘hung parliament’ rewrite the textbooks?
  • What might change?
    • Parliamentary rules (eg. to permit private members/opposition bills)?
      • NB: Constitution ss 53-56.
      • Could PM advise G-G not to assent to a bill?
    • Independents log-rolling (ie. dealing one piece of legislation against another)
      • Are the six ‘cross-benchers’ ready for pressure, lobbying?

What is representative democracy?

  • Imagine being the key independent MP.
  • What is your role in the legislature?

There's this graphy thing that you can view on Graeme Orr's slides.